Craig v. CDCR

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 KENT CRAIG, Case No. 19-cv-05661-EMC 8 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY 9 v. JUDGMENT, AND DENYING PLAINTIFF’S MOTION FOR 10 CDCR, SUMMARY JUDGMENT 11 Defendant. Docket Nos. 39, 40 [13] 14 I. INTRODUCTION 15 In this pro se prisoner’s civil rights action for damages, Kent Craig complains about his 16 prison’s handling of an ADA accommodation request. Defendants moved for summary judgment. 17 Mr. Craig did not file an opposition, and instead filed a cross-motion for summary judgment. 18 For the reasons discussed below, Defendants’ motion for summary judgment will be 19 granted and Mr. Craig’s will be denied. 20 II. BACKGROUND 21 The following facts are undisputed unless otherwise noted. 22 At all relevant times, Mr. Craig was housed at the Correctional Training Facility (“CTF”). 23 From November 7, 2017 to April 26, 2019, Mr. Craig was able to be housed in a lower bunk. See 24 Docket No. 39-3 (“Freeman Declaration”) ¶ 10. This was not because such a bunk had been 25 medically recommended, but rather because there was sufficient space at CTF for Mr. Craig to be 26 given his preference. See id. 27 Since 2007, the Department of Veteran Affairs has provided Mr. Craig with disability 1 In 2017, Mr. Craig did not make a single “attempt . . . to obtain health care services for 2 complaints of hip and back pain.” Id. at DEF 42; see also id. at DEF 45 (stating that health care 3 grievances had been reviewed for any complaints by Mr. Craig of hip and back pain, and none had 4 been found). 5 On January 19, 2018, Mr. Craig submitted a form entitled “Reasonable Accommodation 6 Request.” See Freeman Decl., ¶ 6. He stated that he experienced pain in his hip and lower back 7 when climbing into an upper bunk, claimed to have a disability related to his past military service, 8 and requested to be permanently assigned to a lower bunk. See id., Ex. D. 9 Four days later, Mr. Craig was interviewed by non-defendant Sergeant Thompson 10 regarding this request. See Freeman Decl., Ex. E at DEF 43-44. Non-defendant Sergeant 11 Thompson granted Mr. Craig an interim lower-bunk assignment while prison officials evaluated 12 his request for a permanent assignment. See id. at DEF 43. 13 In preparation for a review by CTF’s Reasonable Accommodations Panel (“RAP”), non14 defendants Dr. Sweet and Nurse Block each completed Disability Verification Process (“DVP”) 15 Worksheets. See Freeman Decl. at DEF 42, 45. Both noted that Mr. Craig had not sought 16 treatment for his pain. See id. at DEF 42, 45. Dr. Sweet found that, based on Mr. Craig’s medical 17 records, a disability accommodation was not indicated. See id. at DEF 42. 18 On January 25, 2018, the RAP reviewed Mr. Craig’s request. See Freeman Decl. ¶ 7 & Ex. 19 E. The RAP noted that Mr. Craig had never complained of hip or back pain. See id. It scheduled 20 a medical appointment for him. See id. The RAP granted Mr. Craig a lower bunk accommodation 21 “[i]n the interim,” which was to be “temporar[y] . . . pending medical evaluation.” Id. at DEF 39. 22 Mr. Craig subsequently had medical appointments with a non-defendant nurse and with 23 non-defendant Dr. Silva. See Freeman Decl., Exs. F, G. The latter ordered an x-ray of Mr. 24 Craig’s hip. See id. at DEF 50. In the appointment with Mr. Craig, Dr. Silva noted that Mr. Craig 25 worked in the CTF bakery, and offered Mr. Craig acetaminophen, which was refused. See id. Dr. 26 Silva did not recommend a lower-bunk accommodation for Mr. Craig. See id. 27 An x-ray was performed on Mr. Craig’s hip, and the radiologist found no dislocations, 1 Docket No. 39-2 (“Gronna Declaration”), Ex. A at DEF 82, 85. 2 Mr. Craig had two follow-up appointments with Dr. Silva. See Gronna Decl., Ex. A DEF 3 84-85. Dr. Silva noted that Mr. Craig’s hip pain was improving, that when Mr. Craig took 4 acetaminophen it helped with said pain, that Mr. Craig reported being able to exercise without 5 incident, and that Mr. Craig was “pacing athletically.” Id. at DEF 85. Dr. Silva did not 6 recommend a lower-bunk accommodation in either appointment. See id. at DEF 84-85. 7 On April 26, 2019, based on changes to institutional availability, Mr. Craig was moved 8 from a lower bunk to an upper bunk. See Freeman Decl., ¶ 10. 9 After this change, on May 28, 2019, Mr. Craig saw non-defendant Dr. Anderson regarding 10 his request for a lower-bunk accommodation. See id. ¶ 11; see also Docket No. 39-4 (“Anderson 11 Declaration”) at ¶ 6. Dr. Anderson noted that Mr. Craig was able to lift himself onto the elevated 12 exam table, rise out of his chair normally, and had a steady gait and average or above-average 13 strength. See Anderson Decl., Ex. A at DEF 57. Mr. Craig also reported to Dr. Anderson that he 14 was able to climb up and down stairs and that ibuprofen, Tylenol, and Naproxen helped with his 15 hip pain. See id. Dr. Anderson offered to refer Mr. Craig to physical therapy for his pain but was 16 refused. See id. at DEF 58. Dr. Anderson concluded that a lower bunk assignment was not 17 necessary. See id. 18 A. Procedural History 19 Mr. Craig filed the instant action on or after August 22, 2019. See Docket No. 1 at 6 20 (dating the original complaint). The Court dismissed the original complaint with leave to amend. 21 See Docket No. 8. Mr. Craig filed a first amended complaint, Docket No. 9 (“FAC”), which the 22 Court screened pursuant to 28 U.S.C. § 1915A, see Docket No. 10. The Court found that Mr. 23 Craig had stated cognizable claims for violation of the ADA and RA and ordered Defendants to 24 respond to those claims. See id. 25 Mr. Craig subsequently moved for a preliminary injunction, see Docket No. 12, which the 26 Court denied, see Docket No. 13. 27 After extensions of time, Defendants moved for summary judgment. See Docket No. 29. 1 See Docket No. 35. 2 After an extension of time, Defendants filed a second motion for summary judgment with 3 fuller argument. See Docket No. 39 (“Summary Judgment Motion” or “MSJ”). Mr. Craig did not 4 file an opposition. See generally, Docket. Instead, Mr. Craig filed a cross-motion for summary 5 judgment. See Docket No. 40. These motions are now before the Court for adjudication. 6 III. VENUE AND JURISDICTION 7 Venue is proper in the Northern District of California because the events or omissions 8 giving rise to the complaint occurred at a jail in Monterey County, which is located within the 9 Northern District. See 28 U.S.C. §§ 84 , 1391(b). The Court has federal question jurisdiction over 10 this action brought under 42 U.S.C. § 1983 and the ADA/RA. See 28 U.S.C. § 1331 . 11 IV. LEGAL STANDARD FOR SUMMARY JUDGMENT 12 Summary judgment is proper where the pleadings, discovery and affidavits show that there 13 is “no genuine dispute as to any material fact and [that] the moving party is entitled to judgment as 14 a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment “against a party 15 who fails to make a showing sufficient to establish the existence of an element essential to that 16 party’s case, and on which that party will bear the burden of proof at trial . . . since a complete 17 failure of proof concerning an essential element of the nonmoving party’s case necessarily renders 18 all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is 19 material if it might affect the outcome of the lawsuit under governing law, and a dispute about 20 such a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict 21 for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 22 In a typical summary judgment motion, a defendant moves for judgment against a plaintiff 23 on the merits of his claim. In such a situation, the moving party bears the initial burden of 24 identifying those portions of the record which demonstrate the absence of a genuine dispute of 25 material fact. The burden then shifts to the nonmoving party to “go beyond the pleadings, and by 26 his own affidavits, or by the ‘depositions, answers to interrogatories, or admissions on file,’ 27 designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 . 1 bears the burden of proof at trial, he must come forward with evidence which would entitle him to 2 a directed verdict if the evidence went uncontroverted at trial. See Houghton v. South, 965 F.2d 3 1532, 1536 (9th Cir. 1992). 4 A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is 5 based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder 6 v. McDonald, 55 F.3d 454 , 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff’s verified complaint 7 as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746 , 8 plaintiff stated under penalty of perjury that contents were true and correct, and allegations were 9 not based purely on his belief but on his personal knowledge). Statements of fact in Mr. Craig’s 10 amended complaint are considered as evidence because the document was signed under penalty of 11 perjury. See Docket No. 6 at 7. 12 The court’s function on a summary judgment motion is not to make credibility 13 determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. 14 Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626 , 630 (9th Cir. 1987). The evidence must 15 be viewed in the light most favorable to the nonmoving party, and inferences to be drawn from the 16 facts must be viewed in the light most favorable to the nonmoving party. See id. at 631. 17 V. DISCUSSION 18 Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. 19 (“ADA”), provides that “no qualified individual with a disability shall, by reason of such 20 disability, be excluded from participation in or be denied the benefits of the services, programs, or 21 activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 22 12132. 23 Although 42 U.S.C. § 12132 does not expressly provide for reasonable accommodations, 24 an implementing regulation provides that “[a] public entity shall make reasonable modifications in 25 policies, practices, or procedures when the modifications are necessary to avoid discrimination on 26 the basis of disability, unless the public entity can demonstrate that making the modifications 27 would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 1 for disabled people under Title II of the ADA arises only when a policy, practice or procedure 2 discriminates on the basis of disability. Weinreich v. Los Angeles County MTA, 114 F.3d 976 , 979 3 (9th Cir. 1997). To prove that a public program or service violated Title II of the ADA, the 4 plaintiff must show: (1) the plaintiff is a qualified individual with a disability; (2) the plaintiff was 5 either excluded from participation in or denied the benefits of the public entity’s services, 6 programs or activities, or was otherwise discriminated against by the public entity; and (3) such 7 exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability. Updike 8 v. Multnomah County, 870 F.3d 939, 949 (9th Cir. 2017); Duvall v. County of Kitsap, 260 F.3d 9 1124, 1134 (9th Cir. 2001). All four elements are required. See Thompson v. Davis, 295 F.3d 10 890, 895 (9th Cir. 2002). Essentially the same showing is required to state a cause of action under 11 Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794 . See Olmstead v. Zimring, 527 12 U.S. 581 , 589–91 (1999); Duvall, 260 F.3d at 1135 . As the parties have not indicated any relevant 13 difference between the ADA and Rehabilitation Act analyses for Mr. Craig’s claims, the claims 14 will be addressed together, as they frequently are. See Duvall v. County of Kitsap, 260 F.3d 1124 , 15 1135 (9th Cir. 2001). 16 Defendants argue that Mr. Craig fails to fulfill the first element; that is, he fails to show 17 that he is a qualified individual with a disability. See MSJ at 11. The Court agrees. 18 The ADA defines “disability” as “(A) a physical or mental impairment that substantially 19 limits one or more major life activities of such individual; (B) a record of such an impairment; or 20 (C) being regarded as having such an impairment . . . .” 42 U.S.C. § 12102 (1) (2009). Thus, in 21 order to show that he qualifies for relief, Mr. Craig must show that one or more of his major life 22 activities is, has been, or is perceived to be, impaired.1 23 Defendants introduced evidence that Mr. Craig’s major life activities were not impaired. 24 Specifically, Defendants introduced evidence that Mr. Craig did not seek treatment for his hip or 25 back in the year preceding his request for an accommodation. See Freeman Decl., Ex. E at DEF [26] 1 Examples of major life activities include “caring for oneself, performing manual tasks, seeing, [27] hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, 1 39-45. After the request was filed, in three evaluations with Dr. Silva, Mr. Craig “pac[ed] 2 athletically,” and reported that he could “exercise [without] incident” and maintained a job in the 3 prison bakery. Gronna Decl., Ex. A at DEF 85, 83; Freeman Decl., Ex. G at DEF 49. In a later 4 evaluation by Dr. Anderson, Mr. Craig walked steadily, was able to “[r]ise[] easily to and from 5 chair to exam table,” and reported that he was able to climb stairs. See Anderson Decl., Ex. A at 6 DEF 57. Although Mr. Craig initially refused pain medication, he later stated that “Ibuprofen[,] 7 Tylenol[,] and naproxen have been effective” in treating his pain. See Freeman Decl., Ex. G at 8 DEF 49; Anderson Decl., Ex. D at DEF 58. Defendants thus have introduced evidence in the 9 record that Mr. Craig’s major life activities were not limited. 10 Defendants’ evidence shifted the burden to Mr. Craig to “designate ‘specific facts showing 11 that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 . He did not carry this burden. 12 Mr. Craig’s Amended Complaint did not identify any activity that he is unable to perform, 13 much less a major life activity. See generally, FAC. Instead, it argued that he was disabled 14 because the Veterans Administration had deemed him so in a 2008 letter, which stated he had a 15 disability from “invertebral disc syndrome.” Id. Likewise, Mr. Craig’s cross-Summary Judgment 16 Motion relies exclusively upon the Veterans Administration letter and does not identify any 17 activity he is unable to perform. See generally, Cross-MSJ. 18 Defendants explain why the letter from the Veterans Administration is insufficient to show 19 that Mr. Craig is disabled within the meaning of the ADA and RA. First, the letter predates the 20 events giving rise to this action by more than a decade. See Freeman Decl., Ex. E at DEF 41. 21 Second, the letter is silent on the degree to which the Veterans Administration considers Mr. Craig 22 to be disabled from “invertebral disc syndrome,” and so it cannot be determined from the letter 23 alone whether a major life activity is “substantially limit[ed],” as the ADA and RA require. 42 24 U.S.C. § 12102 (1) (emphasis added). It is not even clear whether “invertebral disc syndrome” is 25 related to Mr. Craig’s hip pain. Third, the Veterans Administration grants disability compensation 26 based on reduced earnings capacity, and not based on impairment of a major life activity. See 38 27 C.F.R. § 4.1 . Reduced earnings capacity alone does not establish ADA and RA eligibility. See 1 (unpublished) (letter from the Veterans’ Administration did not prove the plaintiff was disabled 2 because it did not “describe the basis of [his] limitations” or “provide the court with any evidence 3 as to the nature, permanence or severity of his condition”). See also McCray v. McDonough, No. 4 18-CV-1637-BHL, 2022 WL 1203024 , at *4 (E.D. Wis. Apr. 22, 2022) (Because “[t]he VA’s 5 percentage ratings are not a mechanism for measuring how much someone’s major life activities 6 are substantially limited by a disability . . . a plaintiff cannot rely on his VA disability 7 classification to show a disability under the ADA or Rehabilitation Act.”); Burkhart v. Intuit, Inc., 8 No. CV-07-675-TUC-CKJ, 2009 WL 528603 , at *15 (D. Ariz. Mar. 2, 2009) (same); Thorn v. 9 BAE Sys. Haw. Shipyards, Inc., 586 F. Supp. 2d 1213, 1221-22 (D. Haw. 2008). Thus, the only 10 evidence submitted by Mr. Craig is insufficient to show that he was disabled within the meaning 11 of the ADA and RA. 12 In sum, Defendants have introduced evidence that Mr. Craig was not disabled within the 13 meaning of the ADA and the RA, and Mr. Craig has failed to rebut that evidence. Defendants are 14 entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). 15 VI. CONCLUSION 16 For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED. 17 Docket No. 39. Plaintiff’s motion for summary judgment is DENIED. Defendants are entitled to 18 judgment in their favor. The Clerk shall close the file. 19 This order disposes of Docket Nos. 39 and 40. [20] 21 IT IS SO ORDERED. [22] 23 Dated: September 26, 2023 [24] 25 ______________________________________ EDWARD M. CHEN 26 United States District Judge