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Tunstall v. Knowles

United States District Court, E.D. California

March 6, 2015

ROBERT TUNSTALL, Plaintiff,
v.
KNOWLES, et al., Defendants.

ORDER & FINDINGS & RECOMMENDATIONS

KENDALL J. NEWMAN, District Judge.

I. Introduction

Plaintiff is a state prisoner, proceeding through appointed counsel. Cross-motions for summary judgment are before the court. As set forth more fully below, the undersigned finds that defendants' motion for summary judgment should be granted, and plaintiffs' motion should be denied.

II. Plaintiff's Pro Se Complaint

Plaintiff's verified complaint, filed December 31, 2008, contains the following allegations. Plaintiff alleges that he is hearing impaired and has suffered discrimination as a result. Plaintiff is totally medically disabled due to a chronic seizure disorder and therefore cannot work around sharp objects. For that reason, plaintiff does not qualify for any of the vocational trade programs offered at California Medical Facility ("CMF"), and has not been able to meet that program requirement for parole. Plaintiff was denied access to sign language classes by defendants, all of whom have the authority to make such classes available, which were once offered at CMF. Plaintiff is being denied access to sign language classes because he allegedly has a G.E.D., and the institution claims that he received the G.E.D. in 1957, on a date when he was twenty days old. The communication difficulties plaintiff experiences affect not only his ability to program and qualify for parole, but his participation in psychiatric groups and mental health programs, as well as his ability to communicate about multiple medical issues that he has secondary to brain surgery. Plaintiff raises claims under the equal protection clause of the United States Constitution, Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. ("ADA"), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("RA").

III. Procedural Background

This action was filed on December 31, 2008; plaintiff seeks injunctive relief and money damages. (ECF No. 1.)

On December 2, 2009, class counsel was requested to confirm whether or not plaintiff was a member of the class in Coleman v. Wilson, Case No. 2:90-cv-0520 LKK (E.D. Cal.), or Armstrong v. Davis, 4:94-2307-CW (N.D. Cal.). (ECF No. 48.) On December 4, 2009, class action counsel confirmed that plaintiff is a member of the Coleman and Armstrong class action lawsuits. (ECF No. 49.)

On April 21, 2010, at the request of the court, staff counsel for J. Clark Kelso, the Federal Receiver for the California state prison medical care system, provided a summary of plaintiff's medical history, diagnosis and plan of care as detailed by the Receiver's Reviewing Physician after reviewing plaintiff's medical file pursuant to the Receiver's standard review procedure related to medical complaints and appeals. (ECF No. 168-1.)

On September 7, 2010, defendants' motion to dismiss was granted in part and denied in part. (ECF No. 95.) Plaintiff's request for prospective injunctive relief on his claims under the ADA and RA were dismissed without prejudice to his right to seek relief as a member of the class in Armstrong v. Davis; and defendants were required to answer plaintiff's claims under the ADA, the RA, and the equal protection clause. The district court adopted in full the findings and recommendations in which the court found plaintiff alleged a cognizable equal protection claim as a "class of one." (ECF No. 91 at 5:5-18.)

On April 27, 2011, defendants filed a motion for summary judgment. (ECF No. 139.) On February 1, 2012, the motion for summary judgment was denied without prejudice. (ECF No. 162.) On February 15, 2012, defendants renewed their motion for summary judgment. (ECF No. 163.) On July 25, 2013, the court noted that the Ninth Circuit's ruling in Pride v. Correa, 719 F.3d 1130, 1138 (9th Cir. 2013), "may bear directly on issues at bar, " ordered a mandatory settlement conference, and denied the motion for summary judgment without prejudice. (ECF No. 174 at 2-3.) Settlement conferences were held on October 3, 2013, and February 18, 2014, but the case did not settle. On March 6, 2014, the dispositive motion deadline was extended to April 17, 2014, and the parties were directed to address the application of Pride v. Correa, 719 F.3d 1130, 1138 (9th Cir. 2013). On April 17, 2014, defendants renewed their motion for summary judgment. (ECF No. 198.) On April 18, 2014, plaintiff filed a motion for partial summary judgment. (ECF No. 199.)

IV. The Armstrong Remedial Plan

Armstrong v. Brown, Case No. C 94-2307 CW (N.D. Cal.) ("Armstrong"), is a class action concerning disability accommodations for prisoners and parolees in the California Department of Corrections and Rehabilitation ("CDCR"). The Armstrong "court ordered Remedial Plan, " or "ARP, " as amended January 3, 2001, requires the CDCR "to ensure that prisoners and parolees with disabilities are accessibly housed, that they are able to obtain and keep necessary assistive devices, and that they receive effective communication regarding accommodations." Armstrong v. Brown, No. 94-2307 CW (ECF No. 1974) (Order filed January 13, 2012).

The ARP provides:

The Disability Placement Program (DPP) is the Department's set of plans, policies, and procedures to assure nondiscrimination against inmates/parolees with disabilities. The DPP applies to all of the Department's institutions/facilities, all programs that the Department provides or operates, and to all inmates who have disabilities that affect a major life activity whether or not the disabilities impact placement.
Although the program covers all inmates/parolees with disabilities, whether or not they require special placement or other accommodation, it is facilitated in part through "clustering" or designating accessible sites (designated facilities) for qualified inmates requiring special placement. Inmates with permanent mobility, hearing, vision, and speech impairments, or other disability or compound conditions severe enough to require special housing and programming, will be assigned to special placement in a designated DPP facility. Inmates with a permanent impairment of lesser severity, learning disability, or a kidney disability, may be assigned to any of the Department's institutions/facilities (designated DPP institutions or nondesignated DPP institutions) consistent with existing case factors.

(ECF No. 31-2 at 6.) With regard to hearing impaired inmates, the ARP further provides:

C.2. Permanent Hearing Impairments
Inmates... who are permanently deaf or who have a permanent hearing impairment so severe that they must rely on written communication, lip reading, or signing because their residual hearing, with aids, does not enable them either to communicate effectively or hear an emergency warning shall be designated as DPH.
D.3. Permanent Hearing Impairments
Inmates... who have residual hearing at a functional level with hearing aids shall be designated as DNH.
E. Effective Communication
1. General
Reasonable accommodation shall be afforded inmates... with disabilities, e.g., hearing impaired, ... to ensure equally effective communication with staff, other inmates, and, where applicable, the public. Auxiliary aids which are reasonable, effective, and appropriate to the needs of the inmate... shall be provided when simple written or oral communication is not effective. Such aids may include bilingual aides... qualified interpreters... sound amplification devices, ... and signage.
2. Communication Implicating Due Process and Delivery of Health Care
Because of the critical importance of communication involving due process or health care, the standard for equally effective communication is higher when these interests are involved. It is the obligation of CDC staff to provide effective communication under all circumstances, but the degree of accommodation that is required under these special circumstances shall be determined on a case-by-case basis and is subject to the following requirements:....

(ECF No. 31-2 at 8-10.)

A revised permanent injunction issued in 2002. See Armstrong v. Davis, 275 F.3d 849, 858 (9th Cir. 2001). On June 4, 2013, the district court confirmed that the Armstrong Remedial Plan ("ARP") addressed effective communication for deaf inmates. Armstrong v. Brown, 939 F.Supp.2d 1012, 1015 (N.D. Cal. June 4, 2013).

V. Defendants' Motion for Summary Judgment

Defendants renewed their motion for summary judgment on April 17, 2014. (ECF No. 198.) After receiving an extension of time, plaintiff filed an opposition on January 16, 2015. Defendants filed a reply on January 23, 2015, along with their objections to plaintiff's evidence. Pursuant to the court's prior order, the court has reviewed plaintiff's prior filings in connection with the motion. (ECF No. 203 at 2, citing ECF Nos. 143, 147, & 165-67.) Plaintiff's counsel generally refers to medical records appended to "most of his pleadings, " but cites to plaintiff's motion for appointment of counsel (ECF No. 103); response to defendant's notice of errata to motion to dismiss (ECF No. 34), and objection to denial of appointment of counsel (ECF No. 23) in counsel's declaration signed April 17, 2012 (ECF No. 167), all of which the undersigned has considered as well.

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).

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's 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), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575 (9th Cir. 1990).

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).

Counsel was appointed to represent plaintiff on October 13, 2011, so no notice under Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) ( en banc ), or Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), was required.

B. Facts[1]

1. At all times relevant to this action, plaintiff was in the custody of the CDCR, and housed at CMF.

2. At all times relevant to this action, defendant Kahle was Supervisor of Correctional Education Programs at CMF. (ECF No. 139-1 at 15: ¶ 1.)

3. At all times relevant to this action, defendant Gonzalez was an Associate Warden at CMF. (ECF No. 139-1 at 18: ¶ 1.)

4. At all times relevant to this action, defendant Knowles was the Warden at CMF. (ECF No. 139-1 at 21: ¶ 1.)

5. At all times relevant to this action, defendant Grannis was the Chief of the Inmate Appeals Board (IAB) in Sacramento, California. (ECF No. 139-1 at 24: ¶ 1.)

6. On approximately April 2, 2008, plaintiff filed a Reasonable Modification or Accommodation Request (CDCR 1824), requesting that he be provided sign language classes "for effective communication." (ECF No. 139-1 at 6-7.)

7. On approximately April 22, 2008, defendant Kahle interviewed plaintiff relating to his CDCR 1824. (ECF No. 139-1 at 7; 15-16: ¶ 2.)

8. At the outset of the interview, it was apparent to defendant Kahle that plaintiff was able to hear and carry on a normal conversation, and was not deaf. (ECF No. 139-1 at 15-16: ¶ 2.)

9. Defendant Kahle informed plaintiff that sign language classes were available to inmates who were hearing-impaired to the level of being legally deaf, and for inmates who had been assigned to clerk positions in the prison that required knowledge of sign language, such as a teaching aide. (ECF No. 139-1 at 7; 15-16: ¶ 2.)

10. Because plaintiff was able to carry on a verbal conversation with defendant Kahle, defendant Kahle did not believe plaintiff required sign language classes to communicate. (ECF No. 139-1 at 15-16: ¶ 2.)

11. Because plaintiff was not assigned to a clerk position that required knowledge of sign language, such as a teaching aide, he was not eligible to receive sign language classes. (ECF No. 139-1 at 15-16: ¶ 2.)

12. To defendant Kahle's knowledge, sign language classes were not provided to anyone who, like plaintiff, could hear and carry on a normal conversation, and were not assigned a clerk position that required knowledge of sign language. (ECF No. 139-1 at 16: ¶ 3.)

13. The denial of plaintiff's CDCR 1824 request for sign language classes by defendant Kahle was reviewed by defendant Gonzalez. (ECF No. 139-1 at 7; 19: ¶ 3.)

14. The denial of CDCR 1824 request was approved by defendant Gonzalez at the First Level of Review because plaintiff failed to demonstrate to the reviewer of the appeal that he had a hearing impairment that required the accommodation of sign language classes for the purpose of acquiring a GED or vocational trade. (ECF No. 139-1 at 19: ¶ 3.)

15. Because it was apparent to defendant Gonzalez that defendant Kahle was able to interview plaintiff, and had made no notation regarding plaintiff's inability to communicate effectively through normal conversation, defendant Gonzalez approved the denial of the request for sign language classes because defendant Kahle acted appropriately on plaintiff's request. (ECF No. 139-1 at 19: ¶ 3.)

16. Plaintiff appealed the denial of sign language classes to the second level of review. (ECF No. 139-1 at 9.) It does not appear that plaintiff explained the reasons for seeking second level review. (ECF Nos. 34 at 37; 139-1 at 9.)

17. Plaintiff's appeal was denied at the second level of review, and was signed on defendant Knowles' behalf by non-defendant Kathleen Dickinson. (ECF No. 139-1 at 21-22: ¶ 2.)

18. Defendant Knowles did not review that appeal, and he was not made aware of plaintiff's request to be provided sign language classes. (ECF No. 139-1 at 9; 11; 21-22: ¶ 2.)

19. Plaintiff appealed the denial of the sign language classes to the Director's Level of Review. (ECF No. 139-1 at 9-10.)

20. Plaintiff's appeal was denied by defendant Grannis at the Director's Level of Review because plaintiff failed to demonstrate that he was not reasonably accommodated for his hearing impairment. (ECF No. 139-1 at 12; 25: ¶ 3.)

21. Specifically, the evidence presented to defendant Grannis demonstrated that plaintiff was able to communicate effectively, and the ARP did not require sign language classes for inmates who merely desired to learn sign language. (ECF No. 139-1 at 12; 25: ¶ 3.)

22. In addition, the evidence presented to defendant Grannis indicated that sign language classes were also provided for Inmate Teacher Aids so that they could tutor Disability Placement Program ("DPP") students who are legally deaf. (ECF No. 139-1 at 12; 25: ¶ 3.)

23. Since records showed that plaintiff was not legally deaf and could otherwise communicate effectively with the use of hearing aids and was not a tutor, it was determined by defendant Grannis that staff acted ...


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