Paschelke v. Doe et al

Filing 52

ORDER granting Defendants' 45 Motion for Summary Judgment. Dfts' motion for summary judgment for failing to exhaust administrative remedies pursuant to FRCP 56 is granted. Dfts William Kolender and County of San Diego's motion for s ummary judgment as to all claims against them is granted. Clerk shall enter judgment for Dfts Kolender and the County of San Diego and close the file. Signed by Judge Irma E. Gonzalez on 5/19/2011. (All non-registered users served via U.S. Mail Service) (jah)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

ELIJAH PASCHELKE,
BOP #05698-298,
Plaintiff,

13

16

09cv2191 IEG (CAB)

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT PURSUANT TO
FED.R.CIV.P. 56

vs.

14
15

Civil No.

WILLIAM KOLENDER, San Diego
County Sheriff; JOHN DOE, San Diego
County Psychiatric Unit Officer

[ECF No. 45]

Defendants.

17
18
19

I.

20

S TATEMENT OF THE C ASE

21

Elijah Paschelke (“Plaintiff”), a federal prisoner currently housed at the Federal

22

Correctional Institution located in Adelanto, California, is proceeding pro se and in forma

23

pauperis with an action filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983. Currently

24

pending before the Court is Defendants’ William Kolender and County of San Diego’s Motion

25

for Summary Judgment pursuant to F ED.R.C IV.P. 56 [ECF No. 45].1

26
27
28

1

While this case was randomly referred upon filing to the Honorable Cathy Ann Bencivengo,
United States Magistrate Judge, for disposition pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has
determined that a Report and Recommendation regarding the disposition of the current pending Motion
[ECF No. 73] is unnecessary. See S. D. CAL. CIV LR 72.3(a).
09cv2191 IEG (CAB)

1

II.

2

P ROCEDURAL B ACKGROUND

3

Defendants Former San Diego County Sheriff William Kolender and County of San

4

Diego are moving for summary judgment on all of Plaintiff’s claims pursuant to F ED.R.CIV.P.

5

56. On February 28, 2011, the Court advised Plaintiff of his rights and obligations to oppose

6

Defendants’ Motion pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand

7

v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc).2 Plaintiff later sought, and received, an

8

extension of time to file an Opposition to Defendants’ Motion. Plaintiff filed his Opposition

9

[ECF No. 50] to which Defendants have filed their Reply [ECF No. 51].

10

Having now exercised its discretion to consider the matter as submitted on the papers

11

without oral argument pursuant to S.D. C AL. C IVLR 7.1.d.1, the Court hereby GRANTS

12

Defendants’ Motion for Summary Judgment pursuant to F ED.R.C IV.P. 56 for the reasons set

13

forth in detail below.

14

III.

15

F ACTUAL A LLEGATIONS3

16

Plaintiff was first held at the San Diego Central Detention Facility (“SDCDF”) on or

17

about September 7, 2007. (See FAC at 9.) Soon after Plaintiff’s arrival, he was issued a

18

“chrono” for a walking cane, as well a “chrono” to be housed in a lower tier and lower bunk.

19

(Id.) Plaintiff alleges that at the time he was housed at SDCDF he was suffering from back

20
21
22
23
24
25
26
27

2

Klingele and Rand together require the district court “‘as a bare minimum, [to provide a pro
se prisoner] with fair notice of the requirements of the summary judgment rule.’” Klingele, 849 F.2d
at 411 (quoting Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968)). “It would not be realistic to
impute to a prison inmate ... an instinctual awareness that the purpose of a motion for summary judgment
is to head off a full-scale trial by conducting a trial in miniature, on affidavits, so that not submitting
counter affidavits is the equivalent of not presenting any evidence at trial.” Jacobsen v. Filler, 790 F.2d
1362, 1364 n.4 (9th Cir. 1986) (internal quotation omitted). Actual knowledge or any level of legal
sophistication does not obviate the need for judicial explanation. Klingele, 849 F.2d at 411-12. Thus,
the district court is required to “tell the prisoner about his ‘right to file counter-affidavits or other
responsive materials and [to][ alert[] [him] to the fact that his failure to so respond might result in the
entry of summary judgment against him.’” Jacobsen, 790 F.2d at 1365 n.8 (quoting Klingele, 849 F.2d
at 411).
3

28

These factual allegations are taken from Plaintiff’s First Amended Complaint [ECF No. 6].
To the extent that Defendants add additional facts or dispute the facts set forth by Plaintiff, the Court
will address those facts in the analysis set forth below.
09cv2191 IEG (CAB)

1

injuries related to a car accident including pain from a “pinched sciatic nerve.” (Id.) Medical

2

staff prescribed medication to be taken twice daily for the pain, along with psychiatric

3

medication. (Id.) However, after Plaintiff left the medical facility and returned to his housing

4

unit, Defendant John Doe 4 “confiscated the walking cane” and informed Plaintiff that

5

“institutional policy does not allow inmates to have canes” while housed in the psychiatric unit.

6

(Id. at 9-10.) This Defendant also failed to provide Plaintiff with a lower bunk and Plaintiff was

7

also later moved to an upper tier. (Id. at 10.)

8

Plaintiff submitted an “inmate request” for the return of his cane but was informed that

9

he could not have a cane until he moved to another unit. (Id.) Plaintiff continued to ask the

10

“Unit Officer” several times to move to another unit so he could have his cane back. (Id.) On

11

October 7, 2007, Plaintiff was “walking up a flight of stairs in order to get to his holding cell and

12

suddenly felt a sharp stabing [sic] pain.” (Id. at 9.) Plaintiff’s back “gave out” which caused

13

him to fall down a flight of stairs. (Id.) Plaintiff was taken by ambulance to the hospital where

14

an MRI and C.T. scans were performed. (Id.). These tests “revealed that [Plaintiff] suffered a

15

fractured neck and compounded back injuries” from the fall. (Id.)

16

After Plaintiff’s return from the hospital, he was given his walking cane back and “moved

17

to the hospital unit of SDCDF on a lower tier, and lower bunk, as initially prescribed” by

18

medical staff. (Id. at 10.) Plaintiff was then transferred to the George Bailey Detention Facility

19

“where follow-up treatments for neck and back injuries were performed.” (Id.)

20

IV.

21

D EFENDANTS’ M OTION FOR S UMMARY J UDGMENT

22

A.

23

Summary judgment is properly granted when “there is no genuine issue as to any material

24

fact and ... the moving party is entitled to judgment as a matter of law.” F ED.R.C IV.P. 56(c).

25

Entry of summary judgment is appropriate “against a party who fails to make a showing

26

sufficient to establish the existence of an element essential to that party’s case, and on which that

Standard of Review

27
4

28

Plaintiff names John Doe, a “psychiatric unit officer.” as a Defendant but he has never
identified this person by name or with any other identifying factors. Moreover, Plaintiff has never
moved to substitute the true name for “John Doe.”
09cv2191 IEG (CAB)

1

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

2

The court shall consider all admissible affidavits and supplemental documents submitted on a

3

motion for summary judgment. See Connick v. Teachers Ins. & Annuity Ass’n, 784 F.2d 1018,

4

1020 (9th Cir. 1986).

5

The moving party has the initial burden of demonstrating that summary judgment is

6

proper. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970). However, to avoid summary

7

judgment, the nonmovant cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794

8

F.2d 457, 459 (9th Cir. 1986). Rather, he must present “specific facts showing there is a genuine

9

issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The Court may not

10

weigh evidence or make credibility determinations on a motion for summary judgment. Quite

11

the opposite, the inferences to be drawn from the underlying facts must be viewed in the light

12

most favorable to the nonmoving party. Id. at 255; United States v. Diebold, Inc., 369 U.S. 654,

13

655 (1962). The nonmovant’s evidence need only be such that a “fair minded jury could return

14

a verdict for [him] on the evidence presented.” Anderson, 477 U.S. at 255. However, in

15

determining whether the nonmovant has met his burden, the Court must consider the evidentiary

16

burden imposed upon him by the applicable substantive law. Id.

17

A verified complaint or motion may be used as an opposing affidavit under F ED.R.C IV.P.

18

56 to the extent it is based on personal knowledge and sets forth specific facts admissible in

19

evidence. McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987) (per curiam) (complaint);

20

Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir. 1998) (motion). To “verify” a

21

complaint, the plaintiff must swear or affirm that the facts in the complaint are true “under the

22

pains and penalties of perjury.” Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995).

23

B.

24

Section 1983 authorizes a “suit in equity, or other proper proceeding for redress” against

25

any person who, under color of state law, “subjects, or causes to be subjected, any citizen of the

26

United States ... to the deprivation of any rights, privileges, or immunities secured by the

27

Constitution.” Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122 (2004).

28

///

42 U.S.C. § 1983

09cv2191 IEG (CAB)

1
2

C.

3

Defendants first move for summary judgment on the grounds that Plaintiff failed to

4

exhaust his available administrative remedies prior to bringing this suit as required by 42 U.S.C.

5

§ 1997e. It is well established that non-exhaustion of administrative remedies as set forth in 42

6

U.S.C. § 1997e(a) is an affirmative defense which defendant jail officials have the burden of

7

raising and proving. See Jones v. Bock, 594 U.S. 199, 216 (2007); Wyatt v. Terhune, 315 F.3d

8

1108, 1119 (9th Cir. 2003).

Exhaustion of Administrative Remedies

9

The Prison Litigation Reform Act (“PLRA”) amended 42 U.S.C. § 1997e(a) to provide

10

that “[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a

11

prisoner confined in any jail, prison or other correctional facility until such administrative

12

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “Once within the discretion of

13

the district court, exhaustion in cases covered by § 1997e(a) is now mandatory.” Porter v.

14

Nussle, 534 U.S. 516, 532 (2002). 42 U.S.C. § 1997e(a) has been construed broadly to “afford

15

[ ] corrections officials time and opportunity to address complaints internally before allowing

16

the initiation of a federal case, id. at 525-26, and to encompass inmate suits about both general

17

circumstances and particular episodes of prison life--including incidents of alleged excessive

18

force. Id. at 532. Finally, “[t]he ‘available’ ‘remed[y]’ must be ‘exhausted’ before a complaint

19

under § 1983 may be entertained,” “regardless of the relief offered through administrative

20

procedures.” Booth v. Churner, 532 U.S. 731, 738, 741 (2001); see also McKinney v. Carey,

21

311 F.3d 1198, 1200-01 (9th Cir. 2002) (finding that prisoner’s civil rights action must be

22

dismissed without prejudice unless prisoner exhausted available administrative remedies before

23

he filed suit, even if he fully exhausts while the suit is pending).

24

The County of San Diego Sheriff’s Department Detention Services provides inmates the

25

right to administratively appeal any issue related to “any condition of confinement.” (See Defs.

26

Ex. E, Policy and Procedure, § N.1, grievance procedure.) In order to exhaust available

27

administrative remedies within this system, an inmate must proceed through the following levels:

28

(1) informal resolution, (2) formal written appeal on J-22 Inmate Grievance forms or other

09cv2191 IEG (CAB)

1

writing materials, (3) second level appeal to Grievance Review officer, (3) third level of appeal

2

to Facility Commander. (Id.)

3

Defendants contend Plaintiff failed to properly exhaust his administrative remedies prior

4

to bringing this suit. In support of Defendants’ Motion, they maintain that Plaintiff only

5

submitted an “inmate request” that pertained to the claims that are contained in his First

6

Amended Complaint. In this “inmate request,” which Defendants concede is adequate for the

7

first stage of the grievance process, Plaintiff indicates that his walking cane was confiscated and

8

claims that he needs his cane to “get back and forth from court and doctors apts.” (Decl. of

9

Rodrick Smith at ¶ 11; Ex. D, Inmate Request by Plaintiff dated September 11, 2007.) The

10

response by jail staff stated that Plaintiff’s cane was confiscated because he was housed on the

11

psychiatric floor which did not permit him to have his cane. (Id.) Rodrick Smith further

12

indicates in his Declaration that Plaintiff did not appeal the medical staff’s response. (Smith

13

Decl. at ¶ 13). Plaintiff offers no rebuttal to this showing by Defendants other than to say that

14

he submitted grievances that were not responded to by jail officials. (See FAC at 11.) Plaintiff

15

offers no documentation to support his claims that he submitted any grievances other than the

16

one addressed above. Plaintiff, in fact, concedes that he failed to appeal his grievances. In his

17

response to interrogatories propounded by Defendants, Plaintiff states that he made the

18

“appropriate steps as they were explained to me by the staff, which was to start with an inmate

19

request stating my issue so the matter could be dealt with on an informal level.” (See Defs. Ex.

20

F, Pl.’s Responses to Special Interrogatories, No. 13.) Plaintiff then states he was told that he

21

“simply couldn’t possess the case on that floor, so I saw nothing else to do.” (Id.)

22

The Supreme Court has made clear that Plaintiff must “properly exhaust” his

23

administrative remedies before filing a prison conditions action. In Woodford v. Ngo, 548 U.S.

24

81, 91 (2006), the Supreme Court held that “[p]roper exhaustion demands compliance with an

25

agency’s deadlines and other critical procedural rules because no adjudicative system can

26

function effectively without imposing some orderly structure on the course of its proceedings.”

27

Woodford, 548 U.S. at 91. The Court further held that “[proper exhaustion] means ... a prisoner

28

09cv2191 IEG (CAB)

1

must complete the administrative review process in accordance with the applicable procedural

2

rules ... as a precondition to bring suit in federal court.” Id.

3

Plaintiff has failed to rebut Defendants’ showing that he failed to properly exhaust his

4

administrative grievances prior to bringing this action. In fact, Plaintiff has conceded that he has

5

failed to exhaust his administrative remedies.

6

concession that he failed to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a)

7

is a valid ground for dismissal.) Thus, the Court GRANTS Defendants’ Motion for Summary

8

Judgment as to all of Plaintiff’s claims for failing to exhaust his administrative remedies as

9

required by 42 U.S.C. § 1997e(a).

10
11

D.

See Wyatt, 315 F.3d at 1120 (A prisoner’s

Claims against Defendant Kolender and County of San Diego
1.

Claims against Defendant Kolender in his individual capacity

12

Defendant Kolender, former Sheriff for the County of San Diego, seeks summary

13

judgment of the claims against him in his individual capacity. Specifically, Defendant Kolender

14

argues that there is “no evidence that he was personally involved in causing any violation of

15

Plaintiff’s constitutional rights.” (See Defs.’ Memo. of P’s & A’s at 12.) “A plaintiff must

16

allege facts, not simply conclusions, that show that an individual was personally involved in the

17

deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). A

18

person deprives another of a constitutional right under section 1983, where that person “‘does

19

an affirmative act, participates in another’ s affirmative acts, or omits to perform an act which

20

[that person] is legally required to do that causes the deprivation of which complaint is made.’”

21

Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). The “requisite causal connection can be

22

established not only by some kind of direct personal participation in the deprivation, but also by

23

setting in motion a series of acts by others which the actor knows or reasonably should know

24

would cause others to inflict the constitutional injury.” Id. at 743-44. There is no respondeat

25

superior liability under § 1983; therefore, a supervisor, like Kolender, may be held liable for the

26

constitutional violations of his subordinates deputies only if he “participated in or directed the

27

violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d

28

1040, 1045 (9th Cir. 1989).

09cv2191 IEG (CAB)

1

Here, Plaintiff claims that as the Sheriff, Kolender has the sole authority to “take charge

2

of and be the sole and exclusive authority to keep the county jail and the prisoners in it.” (FAC

3

at 15.) Plaintiff does not offer any argument or evidence to contradict the declaration of William

4

Kolender in which Kolender states that he has “never received any specific information

5

concerning [Plaintiff] or any correspondence from or about him” prior to the filing of this

6

lawsuit. (Declaration of William B. Kolender at ¶ 3.) Plaintiff simply does not refute this nor

7

does Plaintiff provide any evidence that would indicate that he ever made Defendant Kolender

8

aware of his complaints.

9
10

For these reasons, the Court finds that Sheriff Kolender is entitled to summary judgment
as to all Plaintiff’s claims for damages in his individual capacity.

11

2.

12

Claims against County of San Diego and Kolender in his official
capacity

13

Plaintiff also seeks to hold the County of San Diego and Sheriff Kolender liable in his

14

official capacity for implementing a policy that would not permit him to keep his walking cane

15

while he was housed in the jail’s psychiatric unit. However, Defendants argue that Plaintiff has

16

presented no evidence of an unconstitutional policy. Defendants must show that no triable issues

17

of fact exist to show that the County’s policies amounted to “deliberate indifference” to

18

Plaintiff’s constitutional rights and were the “moving force” behind any violation. See Van Ort

19

v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996); Board of County Commissioners of

20

Bryan County, Oklahoma v. Brown, 520 U.S. 397, 402-04 (1997).5

21

Under Monell v. Dept. of Social Services, 436 U.S. 658 (1978), a local governmental

22

entity may be sued under § 1983 if four conditions are alleged: (1) the plaintiff “possessed a

23

constitutional right of which he was deprived;” (2) the municipality had a policy; (3) the policy

24

amounts to deliberate indifference to the plaintiff’s constitutional right; and (4) the policy was

25
5

26
27
28

As the Court stated in its June 23, 3010 Order, when a claim is made against a government
official in their official capacity, the claim is treated as one against the public entity which in this case
is the County of San Diego. Kentucky v. Graham, 473 U.S. 159 (1985). “As long as the government
entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than
name, to be treated as a suit against the entity. Id. at 166 (citations omitted.) Thus, the claims against
Defendant Kolender in his official capacity and the claims against the County of San Diego will be
treated the same for the purposes of this motion.
09cv2191 IEG (CAB)

1

the “moving force” behind or cause of the constitutional violation. Dietrich v. John Ascuaga’s

2

Nugget, 548 F.3d 892, 900 (9th Cir. 2008) (citing Van Ort, 92 F.3d at 835).

3

First, Plaintiff maintains that his constitutional rights were violated by Defendants use of

4

a policy which he claims violated his right to adequate medical care. Claims alleging a failure

5

to provide medical care to pre-trial detainees, such as Plaintiff, are required to be analyzed as

6

a denial of substantive due process under the Fourteenth Amendment and not under the Eighth

7

Amendment. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Eighth Amendment scrutiny is

8

appropriate only after the State has complied with the constitutional guarantees traditionally

9

associated with criminal prosecutions. . . . [and] the State does not acquire the power to punish

10

with which the Eighth Amendment is concerned until after it has secured a formal adjudication

11

of guilt in accordance with due process of law.”); Gibson v. County of Washoe, 290 F.3d 1175,

12

1187 (9th Cir. 2002) (“Because [petitioner] had not been convicted of a crime, but only arrested,

13

his rights derive from the due process clause rather than the Eighth Amendment’s protection

14

against cruel and unusual punishment.”). However, “[w]ith regard to medical needs, the due

15

process clause imposes, at a minimum, the same duty the Eighth Amendment imposes: ‘persons

16

in custody ha(ve) the established right not to have officials remain deliberately indifferent to

17

their serious medical needs.’” Gibson, 290 F.3d at 1187 (emphasis added), quoting Carnell v.

18

Grimm, 74 F.3d 977, 979 (9th Cir. 1996).6

19

“Prisoners can establish an Eighth Amendment violation with respect to medical care if

20

they can demonstrate there has been deliberate indifference to their serious medical needs.”

21

Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (citing Estelle v. Gamble, 429 U.S. 97,

22

104 (1976)). A “serious” medical need exists if the failure to treat a prisoner’s condition could

23

result in further significant injury or the “unnecessary and wanton infliction of pain.” Estelle,

24

429 U.S. at 104. “The existence of an injury that a reasonable doctor or patient would find

25

important and worthy of comment or treatment; the presence of a medical condition that

26
27
28

6

Defendants do not challenge Plaintiff’s status as a pretrial detainee. The Court will first
analyze Plaintiff’s substantive due process claim under traditional Eighth Amendment principles, and
then consider whether the result would be different if a standard greater than that required by the Eighth
Amendment applied.
09cv2191 IEG (CAB)

1

significantly affects an individuals’s daily activities; or the existence of chronic and substantial

2

pain are examples of indications that a prisoner has a ‘serious’ need for medical treatment.”

3

McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by

4

WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).

5

“Prison officials are deliberately indifferent to a prisoner’s serious medical needs when

6

they deny, delay, or intentionally interfere with medical treatment.” Hallett v. Morgan, 296 F.3d

7

732, 744 (9th Cir. 2002) (internal quotation marks omitted). Deliberate indifference requires

8

allegation of facts sufficient to demonstrate that a prison official acted with a culpable state of

9

mind. Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). “Under the Eighth Amendment’s standard

10

of deliberate indifference, a person is liable for denying a prisoner needed medical care only if

11

the person ‘knows of and disregards an excessive risk to inmate health and safety.’” Gibson, 290

12

F.3d at 1187-88, quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994).

13

The indifference to medical needs also must be substantial; inadequate treatment due to

14

malpractice, or even gross negligence, does not amount to a constitutional violation. Wood v.

15

Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990); see also Estelle, 429 U.S. at 106 (“Medical

16

malpractice does not become a constitutional violation merely because the victim is a prisoner.”)

17

Moreover, a mere delay in medical treatment, without a showing of resulting harm, is

18

insufficient to support an Eighth Amendment violation. Wood, 900 F.2d at 1335; Shapley v.

19

Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).

20

In this case, Plaintiff makes claims that he was denied the use of a walking cane and jail

21

officials refused to honor a “chrono” that provided he should have been housed in a lower bunk

22

and lower tier. As a result of these alleged failures, Plaintiff fell and suffered injuries.

23

Defendants supply Plaintiff’s medical records while housed at SDCDF and the declaration of

24

James Dunford, M.D. who is the physician contracted with the County of San Diego Sheriff’s

25

Department to provide medical services in the San Diego County Jail system. (See Def.s’ Ex.

26

D, Plaintiff’s Medical records; Declaration of James Dunford, M.D.). Plaintiff does not dispute

27

or challenge the admission of this evidence. Dr. Dunford declares that he personally examined

28

Plaintiff on September 7, 2007. (See Dunford Decl. at ¶ 6.) He further declares that Plaintiff

09cv2191 IEG (CAB)

1

complained of lower back pain, requested a prescription for Oxycontin and noted that Plaintiff

2

walked with a limp. (Id. at ¶¶ 9-10.) Dr. Dunford prescribed medication for Plaintiff, including

3

Oxycontin, but found that the use of a cane was not a medical necessity. (Id. at ¶¶ 13, 19.)

4

Moreover, Dr. Dunford “did not make a recommendation to the Sheriff’s Department that

5

[Plaintiff] was in any way disabled or should be placed in medical housing.” (Id. at ¶ 17.)

6

It is undisputed that Plaintiff fell as he was climbing stairs on October 7, 2007. (See FAC

7

at 9; see also Def.s’ Memo. of P’s & A’s at 5.) However, there is no evidence in the record to

8

support Plaintiff’s claim that his fall could be directly related to his inability to have the use of

9

a walking cane while housed in the psychiatric unit. Moreover, Plaintiff provides no evidence

10

or testimony to contradict Dr. Dunford’s medical opinion that Plaintiff was not disabled. Thus,

11

the Court finds that Plaintiff offers no evidence to support that the policy prohibiting the use a

12

walking cane while housed in the psychiatric unit was unconstitutional. Nor is there any

13

evidence in the record to support the argument that this policy was promulgated or enforced by

14

Sheriff Kolender with deliberate indifference to Plaintiff’s constitutional rights or that it was the

15

cause or ‘moving force’ behind any Eighth or Fourteenth Amendment violation by any

16

individual deputy. See Monell, 436 U.S. at 694; Brown, 520 U.S. at 405 (noting that “[w]here

17

a plaintiff claims that the municipality has not directly inflicted injury, but nonetheless has

18

caused an employee to do so, rigorous standards of culpability and causation must be applied to

19

ensure that the municipality is not held liable for the actions of its employee.”).

20

Thus, the Court finds no genuine issues of material facts exist to support a municipal

21

liability claim against either Sheriff Kolender in his official capacity or the County of San Diego.

22

For these reasons, Defendants Kolender and the County of San Diego are entitled to summary

23

judgment as a matter of law pursuant to F ED.R.C IV.P. 56.

24

V.

25

C ONCLUSION AND O RDER

26
27
28

For all the foregoing reasons, IT IS HEREBY ORDERED that:
Defendants’ Motion for Summary Judgment [ECF

No. 45] for failing to exhaust

administrative remedies pursuant to F ED.R.C IV.P. 56 is GRANTED.

09cv2191 IEG (CAB)

1
2
3
4

Defendants’ William Kolender and County of San Diego’s Motion for Summary
Judgment [ECF No. 45] as to all the claims against them is GRANTED.
The Clerk of Court shall enter judgment for Defendants Kolender and the County of San
Diego and close the file.

5
DATED: May 19, 2011
6
7

IRMA E. GONZALEZ, Chief Judge
United States District Court

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

09cv2191 IEG (CAB)