Burgos v. Long et al

Filing 107

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 02/26/13 recommending that the 08/03/12 motion for summary judgment 93 be denied. MOTION for SUMMARY JUDGMENT 93 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD MANUEL BURGOS,
Plaintiff,

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vs.

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No. 2:10-cv-3274 GEB EFB P

ROBERT LONG, et al.,
Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. All defendants move for summary judgment filed by. Dckt. No. 93. For the

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reasons explained below, the undersigned recommends that the motion for summary judgment be

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denied.

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I.

The Complaint

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This action proceeds on the verified complaint filed December 7, 2010. Dckt. No. 1. In

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the complaint, plaintiff asserts that defendants were deliberately indifferent to his medical needs

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when they required him to work at a porter job which he could not perform due to various

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medical ailments. Id. at 4-10.1 Specifically, plaintiff alleges:

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Page numbers cited herein refer to those assigned by the court’s electronic docketing
system and not those assigned by the parties.
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Since 1989, plaintiff has been treated by medical staff in the California prison system for

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“seizures, falls, serious injuries, physical disabilities and severe pain due to permanent nerve

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damage on the right side of head, facial fractures on right side of nose and fractures under the

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right eye along the sinus box.” Id. at 4. Plaintiff also suffers from permanent nerve damage in

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his neck and lower back. Plaintiff’s injuries cause plaintiff to suffer seizures, falls, and further

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injuries and ailments (e.g., broken bones, migraines, blurred vision, dizziness, headaches, sinus

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infections, nose bleeds, sensitivity to nose and light, ambulatory problems, and severe pain). Id.

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One such seizure caused plaintiff permanent nerve damage in his right hip, leg, and foot. Id.

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Because of that nerve damage, plaintiff’s right hip and leg can give out and make plaintiff fall.

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Id.
Due to his medical problems, plaintiff’s medical providers have prescribed him physical

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limitations governing the type of work he may perform: “Work sitting position only; no work on

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slippery floors; no assignment to yard areas of grass-pollen producing plants; no dust, no

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pushing/pulling/mopping/bending/stretching/stooping.” Id.

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On March 26, 2009, defendant Hayward, working in the Inmate Assignment Office at

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California State Prison, Solano (“CSP-Solano”), assigned plaintiff to work as a porter. Id. at 5.

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The porter job requires standing and working on slippery floors. Id. Plaintiff wrote to defendant

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Hayward, requesting that he be unassigned from the job and providing documentation of his

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physical limitations. Id. at 5-6. On June 16, 2009, Lisa Rodriguez, an office technician in the

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Inmate Assignment Office replied to plaintiff, recommending that he be seen by the Unit

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Classification Committee (“UCC”). Id. According to Ms. Rodriguez, if UCC determined that

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plaintiff’s medical conditions required that he be unassigned from the job, it would direct the

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Inmate Assignment Office to unassign him. Id.

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In the meantime, from April 9, 2009 through August 12, 2009, plaintiff’s medical

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providers prescribed “lay-ins” (i.e., documentation excusing plaintiff from work), “due to

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frequency of seizures-falls-new-injuries and severe pain.” Id. at 5. Nevertheless, defendant
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Rosario ordered plaintiff to report to work “[o]n April 18, 2009 through September 22, 2009.”

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Id. at 6. Plaintiff says that he did so despite severe pain. Id. On July 12, 2009, defendant

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Rosario issued two disciplinary chronos to plaintiff, the first for plaintiff’s refusal to report to

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work and the second documenting his observation of plaintiff moving his mattresses and

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property to a new cell by bending down and picking them up and pulling a “flat cart.” Id. at 7.

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Plaintiff submitted several requests to defendant Racklin to be unassigned from the porter

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job. Id. at 7-8. Plaintiff attached physical limitations chronos, medical documentation of recent

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injuries to his shoulder and back, previous UCC chronos unassigning plaintiff from porter and

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yard crew jobs due to his medical conditions, and medical lay-ins. Id.

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On April 21, 2009, plaintiff appeared before the UCC, comprised of defendants Racklin,

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Palmer, Sanchez, and Long. Id. at 8. The committee memorialized the meeting, in part, by

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stating:

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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.

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Id.
During the meeting, defendant Long told plaintiff, “If you don’t work, we will transfer

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you.” Id. Defendant Long reiterated this sentiment in meetings at the Program Office between

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April 29, 2009 and September 22, 2009, stating, “I have no doubt you have serious medical

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problems. If you don’t work I will transfer you.” Id. Plaintiff provided defendant Long with

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significant documentation of his medical issues, including physical limitations chronos, medical

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lay-ins, and previous UCC chronos unassigning plaintiff from porter and yard crew jobs due to

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his medical conditions. Id. at 8-9. Defendant Long nevertheless ordered plaintiff to report to

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work or to the Program Office “continuously” from April 29, 2009 through September 2009,

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causing plaintiff severe pain. Id. at 9.
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On July 23, 2009, Correctional Officer E. Colder issued a Notice of Classification

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Hearing, stating his recommendation that plaintiff “be scheduled for the next available UCC to

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be removed from his assigned position due to his medical condition[.]” Id. at 6.

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On November 18, 2009, the Inmate Appeals Branch ordered the UCC to review

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plaintiff’s “CDC 7410, dated April 30, 2009, to determine [plaintiff]’s ability to perform the

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duties of a porter.”2 Id. at 9. In response, defendant Long wrote, “On 11/19/09 the ‘S’ case was

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reviewed by UCC. . . . Pursuant to current Armstrong and regulations, the ‘S’ will be reasonable

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[sic] accommodated in available work, education and training programs. His C-File has no

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medical preclusions that cannot be reasonable [sic] accommodated in porter position.” Id.
Plaintiff alleges that the foregoing facts show defendants’ deliberate indifference to his

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serious medical needs through their interference with his medically-prescribed lay-ins and

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physical limitations. Id. at 10-11.

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II.

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Defendants’ Factual Assertions
Defendants do not dispute plaintiff’s description of his medical problems or that he was

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assigned to work as a porter on March 26, 2009. Dckt. No. 93-2, Defs.’ Statement of Undisputed

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Facts ISO Mot. for Summ. J. (hereinafter “DUF”) 1. Defendant Rosario was one of plaintiff’s

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supervisors at the porter job. DUF 9.

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The parties do not dispute that plaintiff asked to be unassigned from the porter position at

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his April 21, 2009 UCC review, before defendants Sanchez, Racklin, Palmer. (Defendants do

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not mention whether defendant Long was also a part of the April 21, 2009 review, as plaintiff

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asserts.) Defendants assert that defendant Sanchez responded that plaintiff must submit

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It is apparent from the evidence submitted in connection with the instant motion that the
form referred to by the Inmate Appeals Branch is a “Comprehensive Accommodation Chrono”
signed by the Chief Medical Officer, specifying the following physical limitations to plaintiff’s
job assignments: “no pushing and pulling; no mopping; no prolonged standing or walking more
than 15 minutes; no work with heavy machinery; no driving motor vehicles; no reaching,
bending, squatting, stretching, stooping; no work on slippery floors” for a duration of one year.
Dckt. No. 97-1 at 29.
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documentation from his work supervisor but also CDCR medical staff verifying that his

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disabilities could not be reasonably accommodated in the porter job despite reasonable attempts

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to do so. DUF 20. Because plaintiff “had not submitted the requisite documentation [from his

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supervisor] evidencing such failed attempts to reasonably accommodate his work-related

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disabilities,” the UCC could not unassign plaintiff at that time. DUF 21, 25-26, 30. Defendants

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Sanchez, Racklin, and Palmer did not have any further interaction with plaintiff after the April

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21, 2009 UCC review. DUF 24. Defendants deny that any of them ever threatened to transfer

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plaintiff if he refused to work. DUF 22, 27, 31, 43.

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Defendants do not dispute that plaintiff presented defendant Rosario with lay-ins between

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April 29, 2009 and August 12, 2009 authorizing his absence from work. DUF 10. Defendant

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Rosario claims that he never ordered plaintiff to violate these lay-ins by returning to work prior

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to their expiration dates. DUF 12. Defendant Rosario asserts that plaintiff provided him with

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the Comprehensive Accommodation Chrono (see footnote 2) on or around April 30, 2009 and

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demanded to be removed from the porter position. DUF 13. Defendant Rosario responded that

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he would reasonably accommodate plaintiff’s restrictions in the porter job by allowing plaintiff

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to discharge his duties by updating cell “door tags.” DUF 14. This task would require plaintiff

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to sit at a table and verify the information on the door tags, revise the tags to reflect changed cell

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assignments, and replace old tags with revised tags. Id. Plaintiff again asked to be unassigned,

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and defendant Rosario told plaintiff he lacked authority to do so and that only the UCC had such

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authority. DUF 15, 16. According to defendants, plaintiff never told defendant Rosario that he

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suffered a work-related injury. DUF 17.

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The parties also do not dispute that plaintiff made a written request to defendant Hayward

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on June 1, 2009 to be unassigned from the porter job, accompanied with supporting

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documentation, or that defendant Hayward’s office technician L. Rodrigues responded that

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defendant Hayward lacked that authority and plaintiff would have to seek unassignment from the

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UCC. DUF 34, 36, 37.
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Defendant Long presided over UCC hearings for plaintiff on November 19, 2009 and

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December 30, 2009. DUF 40. Defendant Long does not dispute that, in response to the

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modification order issued in response to plaintiff’s appeal regarding his assignment to the porter

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job, he concluded that the form 7412 (see footnote 2, above) and plaintiff’s C-file did not

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indicate that plaintiff could not be reasonably accommodated in the porter job. DUF 41, 42.

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III.

Plaintiff’s Response to Defendants’ Factual Assertions

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In response to defendants’ proffered facts, plaintiff reiterates that defendant Rosario did

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order him to work despite his medical lay-in orders between April 19, 2009 and July 14, 2009.

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Dckt. No. 97, Pl.’s Opp’n to Defs.’ Statement of Undisputed Facts (hereinafter “PUF”) 12. On

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July 11, 2009, defendant Rosario issued a written order to plaintiff to report to work and, on

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many other occasions, issued such orders verbally. Id. According to plaintiff, defendant Rosario

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never offered to accommodate his disabilities by having plaintiff update door tags. PUF 14.

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Plaintiff asserts that he provided documentation of his disabilities to defendant Rosario, who

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then had the obligation to inform the UCC that plaintiff could not perform the essential functions

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of the porter job. PUF 13, 16.

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While plaintiff claims to dispute defendants’ assertions that he did not provide them with

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documentation from his supervisor attesting to failed attempts to reasonably accommodate

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plaintiff that he April 21, 2009 UCC meeting, it is evident that plaintiff provided medical

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chronos and other such evidence but nothing from his work supervisor at that time. See PUF 21.

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It is also evident that no defendant other than defendant Long has ever told plaintiff that he

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would transfer plaintiff if plaintiff did not work. See PUF 22, 27, 31. Plaintiff reiterates that

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defendant Long did make such statements, both at the April 21, 2009 review and subsequently in

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the Program Office. PUF 43.

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According to plaintiff, his supervisor Officer E. Colter provided documentation to

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defendant Racklin that plaintiff could not be reasonably accommodated in the porter job on or

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after July 23, 2009, but defendants Rosario, Racklin, Sanchez, Long and Palmer refused to

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review this documentation by convening a new UCC review. PUF 26, 28, 29.

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IV.

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Summary Judgment Standard
Summary judgment is appropriate when there is “no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary

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judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant

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to the determination of the issues in the case, or in which there is insufficient evidence for a jury

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to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600

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(1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v.

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U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment

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motion asks whether the evidence presents a sufficient disagreement to require submission to a

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jury.

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The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims

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or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to

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“‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for

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trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

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(quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally,

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under summary judgment practice, the moving party bears the initial responsibility of presenting

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the basis for its motion and identifying those portions of the record, together with affidavits, if

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any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477

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U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving

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party meets its burden with a properly supported motion, the burden then shifts to the opposing

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party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e);

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Anderson., 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).
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A clear focus on where the burden of proof lies as to the factual issue in question is

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crucial to summary judgment procedures. Depending on which party bears that burden, the party

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seeking summary judgment does not necessarily need to submit any evidence of its own. When

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the opposing party would have the burden of proof on a dispositive issue at trial, the moving

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party need not produce evidence which negates the opponent’s claim. See e.g., Lujan v. National

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Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters

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which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-

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24 (1986). (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive

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issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings,

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depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment

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should be entered, after adequate time for discovery and upon motion, against a party who fails

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to make a showing sufficient to establish the existence of an element essential to that party’s

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case, and on which that party will bear the burden of proof at trial. See id. at 322. In such a

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circumstance, summary judgment must be granted, “so long as whatever is before the district

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court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is

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satisfied.” Id. at 323.

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To defeat summary judgment the opposing party must establish a genuine dispute as to a

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material issue of fact. This entails two requirements. First, the dispute must be over a fact(s)

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that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S.

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at 248 (“Only disputes over facts that might affect the outcome of the suit under the governing

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law will properly preclude the entry of summary judgment.”). Whether a factual dispute is

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material is determined by the substantive law applicable for the claim in question. Id. If the

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opposing party is unable to produce evidence sufficient to establish a required element of its

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claim that party fails in opposing summary judgment. “[A] complete failure of proof concerning

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an essential element of the nonmoving party’s case necessarily renders all other facts

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immaterial.” Celotex, 477 U.S. at 322.
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Second, the dispute must be genuine. In determining whether a factual dispute is genuine

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the court must again focus on which party bears the burden of proof on the factual issue in

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question. Where the party opposing summary judgment would bear the burden of proof at trial

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on the factual issue in dispute, that party must produce evidence sufficient to support its factual

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claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion.

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Rather, the opposing party must, by affidavit

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or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue

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for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to

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demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such

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that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson,

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477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.

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The court does not determine witness credibility. It believes the opposing party’s

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evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255;

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Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the

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proponent must adduce evidence of a factual predicate from which to draw inferences. American

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Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir.1991) (Kozinski, J.,

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dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts

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at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441

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(9th Cir. 1995). On the other hand,“[w]here the record taken as a whole could not lead a rational

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trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita,

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475 U.S. at 587 (citation omitted); Celotex., 477 U.S. at 323 (If the evidence presented and any

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reasonable inferences that might be drawn from it could not support a judgment in favor of the

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opposing party, there is no genuine issue). Thus, Rule 56 serves to screen cases lacking any

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genuine dispute over an issue that is determinative of the outcome of the case.

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Concurrent with the instant motion, defendant advised plaintiff of the requirements for

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opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dckt. No. 95;
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see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.

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1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409

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(9th Cir. 1988).

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V.

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Analysis
The Eighth Amendment of the U.S. Constitution protects prisoners from inhumane

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methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen,

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465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out a

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conditions of confinement claim, and only those deprivations denying the minimal civilized

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measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment

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violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992).

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To succeed on an Eighth Amendment claim predicated on the denial of medical care, a

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plaintiff must establish that he had a serious medical need and that the defendant’s response to

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that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see

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also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to

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treat plaintiff’s condition could result in further significant injury or the unnecessary and wanton

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infliction of pain. Jett, 439 F.3d at 1096. An officer has been deliberately indifferent if he was

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(a) subjectively aware of the serious medical need and (b) failed to adequately respond. Farmer

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v. Brennan, 511 U.S. 825, 828 (1994). Deliberate indifference may be manifested by a prison

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official’s intentional interference with a prisoner’s medical treatment. Jett, 439 F.3d at 1096.

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Defendants first argue that they did not violate plaintiff’s Eighth Amendment rights

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because “[t]he deprivation experienced by Plaintiff between March 2009 and December 2009, if

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any, was not extreme.” Dckt. No. 93-1, Defs.’ P’s & A’s ISO Defs.’ Mot. for Summ. J. at 10. In

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defendants’ view, plaintiff was already suffering from his injuries when he was assigned to the

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porter job and has not come forward with evidence that he was further injured in that job.

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Plaintiff, however, disputes defendants’ assertion that he did not suffer when he was required to

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report to work and he presents evidence in support of contention. Dckt. No. 1 at 6, 9 (plaintiff

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reported to work or the Program Office despite severe pain).

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In a similar vein, defendants claim that defendants were not subjectively aware that the

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porter job presented a risk of serious harm to plaintiff because he never complained of a “work-

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related” injury. Dckt. No. 93-1 at 14. While the lack of a prior complaint is a factor to consider,

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it does not, as a matter of law, equate with lack of substantive awareness of the risk of harm.

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Plaintiff need not have ever made such a complaint to show that defendants were deliberately

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indifferent. E.g., Quarles v. Palakovich, 736 F. Supp. 2d 941, 944, 951-52 (M.D. Pa. 2010)

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(although plaintiff did not complain about a dangerous prison condition, defendants’ awareness

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of that condition could be found based on other evidence); Johnson v. Cain, No. 08-0590-FJP-

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DLD, 2009 U.S. Dist. LEXIS 90697, at *19 (M.D. La. Sept. 3, 2009). Plaintiff has presented

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evidence that he consistently complained to defendants that, if he was required to do the porter

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job, he would suffer due to his medical conditions. Dckt. No. 1 at 5-9. That is enough to raise a

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triable issue of material fact as to whether defendants were aware of plaintiff’s serious medical

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need.

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Next, defendants argue that defendant Rosario was not deliberately indifferent to

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plaintiff’s medical needs because he offered to accommodate plaintiff by having him update door

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tags. Plaintiff, again, disputes this fact. PUF 14 (defendant Rosario never presented such an

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accommodation to plaintiff).

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Defendants next argue that, because plaintiff did not give them enough information

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substantiating his claim that disabilities prevented him from performing the porter job, they were

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not deliberately indifferent. Plaintiff’s evidence, however, is that he provided each of the

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defendants with documentation from medical personnel informing them that he could not do the

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essential functions of the porter job. Dckt. No. 1 at 5-9. Plaintiff’s evidence is that he further

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provided defendant Racklin with a request from his work supervisor that a new UCC review be
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convened to have plaintiff unassigned from the job due to plaintiff’s medical conditions. Id. at 6;

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PUF 26, 28, 29. Thus, the evidence is disputed as to whether defendants were subjectively

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aware of the risk of harm posed by requiring plaintiff to perform the porter job.

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Lastly, defendants argue that they should be granted summary judgment based on

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qualified immunity. In analyzing an assertion of qualified immunity, the court considers (1)

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whether the facts show a constitutional violation and (2) whether the constitutional right was

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clearly established. Defendants contend, generally, that they responded to plaintiff’s requests in

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a manner consistent with CDCR policies and that none of the defendants engaged in

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constitutionally impermissible conduct. As discussed above, the facts are in dispute as to

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whether there was a constitutional violation and those disputes preclude summary judgment for

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the defendants on the assertion of qualified immunity presented here. “If . . . there is a material

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dispute as to the facts regarding what the officer or the plaintiff actually did, the case must

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proceed to trial, before a jury if requested.” LaLonde v. County of Riverside, 204 F.3d 947, 953

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(9th Cir.2000); Thompson v. Mahre, 110 F.3d 716, 719 (9th Cir.1997) (“[W]here there is a

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genuine issue of fact on a substantive issue of qualified immunity, ordinarily the controlling

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principles of summary judgment and, if there is a jury demand and a material issue of fact, the

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Seventh Amendment, require submission to a jury.”).

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VI.

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Recommendation
For the above reasons, it is RECOMMENDED that the August 3, 2012 motion for

summary judgment (Dckt. No. 93) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: February 26, 2013.

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