equating the 24 standard with that of criminal recklessness
How later courts described this case
- equating the 24 standard with that of criminal recklessness
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 JOSEPH GRIMES, Case No. 16-cv-01488-WHO (PR)
Plaintiff,
8
ORDER GRANTING
9 v. DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
10 JOHN DUNLAP, et al.,
Dkt. Nos. 61, 78, and 79
Defendants.
11
12
13 INTRODUCTION
14 Plaintiff Joseph Grimes alleges in this 42 U.S.C. § 1983 suit that defendants
15 inflicted cruel and unusual punishment and violated his disability rights by denying him
16 gloves to wear when he operated his wheelchair. Defendants move for summary
17 judgment. Grimes failed to meet the California Probate Code’s requirements to sue the
18 estate of one defendant (Chisum); he sued her supervisor (Dunlap), who never treated
19 Grimes nor supervised his case; and there is no evidence of discrimination based on his
20 treatment. Nor does the record show deliberate indifference. For these reasons,
21 defendants’ motion for summary judgment is GRANTED.
22 BACKGROUND
23 This suit arises from the asserted denial of replacement wheelchair gloves by staff
24 at Salinas Valley State Prison to Grimes.1 Grimes is morbidly obese, uses a wheelchair,
25 and was classified as DPO, which “designates inmates who do not require a wheelchair
26 full time, but are medically prescribed a wheelchair for use outside of the assigned cell.”
27
1 (Mot. for Summ. J. (MSJ), Dkt. No. 61 at 10.) Grimes suffers from other maladies:
2 hypertension, degenerative disc disease of the lumbar spine, schizophrenia, antisocial
3 personality, gastroesophageal reflux disease and a history of poly substance abuse, and
4 diabetes mellitus type-2. (Id. at 11.) His doctors prescribed many medications for these
5 conditions, including pain pills. (Id.)
6 A summary of Grimes’s relevant medical history and treatment follows.
7 May 23, 2012: Dr. Moon examined Grimes at Corcoran State Prison in response to
8 his complaints of back pain, walking difficulty, and a fall that had occurred a month prior.
9 Grimes was morbidly obese at 311 pounds. Moon referred him to physical therapy,
10 prescribed pain medication, and revised his “comprehensive chrono” to include the grant
11 of a wheelchair. Other medical equipment was prescribed, but not gloves, which were not
12 requested. A disability placement program verification form was also completed. Moon
13 designated Grimes as an “intermittent wheelchair user, or DPO,” which “designates
14 inmates who do not require a wheelchair full time but are medically prescribed a
15 wheelchair for use outside of the assigned cell.” (MSJ, Feinberg Decl., Dkt. No. 61-7 at 4,
16 5.)
17 September 26, 2012, October 8, 2012, October 16, 2012, May 29, 2013, and
18 June 11, 2013: At medical appointments on these dates, Grimes did not request
19 wheelchair gloves nor did he complain of hand calluses or pain. (Id. at 5-6.)
20 January 24, 2014: Dr. Hamkar saw Grimes in response to his complaint of a callus
21 on his left foot, which Hamkar then shaved off. There were no complaints about hand
22 calluses or “any physical problems attributable to a lack of wheelchair gloves.” (Id. at 6.)
23 By this time, Grimes had used a wheelchair for about a year and a half (May 23,
24 2012-January 24, 2014). During this time, he never requested gloves, nor complained of
25 hand calluses or pain, nor complained about a lack of gloves.
26 March 5, 2014: Dr. Bourne saw Grimes regarding a grievance in which he
27 requested morphine for chronic pain, an egg-crate mattress, a wheelchair cushion,
1 back brace were denied; the rest were granted. Bourne “prescribed wheelchair gloves for
2 Grimes’s additional comfort and convenience,” not because they were “medically
3 necessary.” There were no complaints of hand pain or calluses, and Bourne noted no
4 calluses. (MSJ, Bourne Decl., Dkt. No. 61-1 at 3.) Grimes received his wheelchair gloves
5 on March 18, 2014 but lost them the same day. (Id.)
6 Before March 2014, Grimes “never had a chrono for wheelchair gloves and never
7 received wheelchair gloves.” There is also no notation that before March 2014 that
8 Grimes complained of hand calluses or pain, even though he had used a wheelchair for
9 well over a year. (Id., Feinberg Decl., Dkt. No. 61-7 at 7.)
10 March 8, 2014: Grimes filed a health care services request in which he stated “I
11 am feeling pain like a hundred needle[s] sticking me all the times [sic] [in my] legs, arms
12 and hands.” The nurse’s response notes that the patient has a history of lower back pain
13 and a “family history of diabetes,” which is likely the cause of (“c/o”) the “feeling of pins
14 and needles.” (Id., Feinberg Decl., Dkt. No. 61-9 at 32.)
15 April 16, 2014, May 20, 2014, and June 5, 2014: Grimes did not complain about
16 hand calluses or pain, or his lost gloves, during the examinations on these dates. (Id.,
17 Feinberg Decl., Dkt. No. 61-7 at 7.)
18 June 6, 2014: For the first time, Grimes complained in person about having hand
19 calluses, but he did not mention any pain. The examiner, Dr. Bourne, “made a notation of
20 hand calluses and new wheelchair gloves, [b]ut during the examination I did not document
21 hand calluses.” Bourne did note foot calluses, however. He prepared a comprehensive
22 chrono which contained a prescription for wheelchair gloves for six months. The gloves
23 were prescribed for “additional comfort and convenience,” not because they were
24 medically necessary. (Id., Bourne Decl., Dkt. No. 61-1 at 3.) This was the first notation
25 of hand calluses and wheelchair gloves in Grimes’s medical record. (Id., Feinberg Decl.,
26 Dkt. No. 61-7 at 7-8.) There had been no prior complaint about either. (Id. at 8.)
27 Grimes filed a grievance on this date against “state worker Kathy medical supply.”
1 June 9, 2014: Three months after losing his gloves, Grimes submitted a health
2 care services request in which he complained of hand pain. He told a nurse the pain was
3 caused by calluses, which had been caused by a lack of gloves. The nurse noted “small
4 calluses near left and right thumb,” and “middle and index fingers.” (MSJ, Feinberg Decl.,
5 Dkt. No. 61-7 at 8.)
6 June 15, 2014: Grimes filed another request, this one to see a nurse about pain. He
7 was seen the next day. He asked for gloves and was told a new approved chrono had been
8 sent to the medical supply department. Calluses were noted by staff. (Id.)
9 June 20, 2014: Grimes met with Dr. Bourne because he had been refusing his
10 diabetes medications. There were no complaints of hand calluses or pain. (Id., Bourne
11 Decl., Dkt. No. 61-1 at 4.)
12 June 25, 2014: Dr. Bourne saw Grimes regarding a grievance related to a prison
13 transfer. There were no complaints of hand calluses or related pain. (Id.) However, that
14 same day Grimes requested an appointment regarding his hand calluses. (Id., Feinberg
15 Decl., Dkt. No. 61-7 at 8.)
16 June 28, 2014: Grimes was seen by a nurse regarding his June 25th request, which
17 involved “unwanted calluses that cause pain.” The “onset” of the condition was said to be
18 four years. An examination showed “multiple peasized hard masses in both hands.” In the
19 comments section, a nurse noted that “Inmate/Patient wanted to have a new pair of gloves.
20 He has chrono for it. Claims to have lost his gloves.” (Id. at 8-9.)
21 June 29, 2014: Grimes asked for an appointment regarding “painful calluses” and
22 to contact the medical supplies department. Grimes said he hadn’t received the new
23 wheelchair gloves. The examining nurse noted that “patient denies any pain right now, but
24 just wants to know what’s going on with his wheelchair gloves.” (Id. at 9)
25 August 4, 2014: Grimes met with a doctor, Do-Williams, and discussed various
26 health matters. He did not complain about hand calluses or pain or a lack of gloves. (Id.)
27 August 6, 2014: A nurse saw Grimes about a grievance he had filed. Grimes
1 are not a medical necessity. Only one pair per year will be issued. You may request
2 gloves [on] March 2015 based on when you were last issued gloves.” (Id.)
3 September 3, 2014: Dr. Birdsong saw Grimes regarding his health conditions, but
4 nothing was said about hand calluses, pain, or a lack of gloves. (Id.)
5 September 12, 2014: Dr. Do-Williams saw Grimes about various medical
6 concerns. There were no complaints about hand calluses, hand pain, or lack of wheelchair
7 gloves. (Id.)
8 September 15, 2014: Another appointment with Dr. Do-Williams. No complaints
9 about hand calluses, pain, or a lack of gloves. (Id.)
10 September 19, 2014: Another appointment with Dr. Do-Williams. Several matters
11 were discussed but there were no complaints about hand calluses, pain, or a lack of gloves.
12 (Id.)
13 October 8, 2014: Another appointment with Dr. Do-Williams. The notes state that
14 “the patient was added onto today’s visit as the patient had filed a complaint with the
15 prison law office stating that he has developed painful calluses in the palms of his hands
16 that make it difficult for him to access prison program services and activities.” “The
17 patient states that his wheelchair gloves had been lost after physical therapy in March 2014
18 and has been requesting to have his gloves dispensed to him but custody refused that.”
19 An exam showed that there were multiple calluses on both hands, but none had
20 signs of skin breakdown, bleeding, or tenderness. Grimes asked for gloves, which
21 Williams ordered for him. Grimes was instructed to “be responsible for his property” and
22 that staff “will not continue to issue him gloves on an as-needed basis.” He was also told
23 that after he receives his new gloves, replacements will not be given unless he can show
24 that his current gloves are worn-out. (Id. at 9-10.) 2
25
26
27
2 According to a letter from defendant Dunlap that Grimes included in his exhibits, Grimes
1 October 29, 2014: Dr. Do-Williams saw Grimes regarding a grievance in which he
2 requested his chrono be updated for all his medical appliances. Grimes complained about
3 painful calluses on his feet, he did not mention any hand calluses or associated pain. (Id. at
4 10.)
5 November 2, 2014: Grimes submitted a health care services request in which he
6 complained about an eight-month delay in receiving gloves. He said the lack of gloves
7 caused his hands to hurt severely and caused pain to run up his arms. An examination on
8 November 6, 2014, showed nothing remarkable. (Id.)
9 November 10, 2014: Grimes was seen by Dr. Do-Williams as a follow-up to prior
10 complaints about chest pain. Do-Williams and Grimes discussed the chest pain and other
11 matters, but Grimes did not complain of hand calluses and pain. (Id.)
12 November 26, 2014: Dr. Do-Williams saw Grimes regarding his numerous
13 maladies. Grimes said nothing about hand calluses or hand or arm pain. He did say that
14 sometimes he experiences “a tingling sensation in both of his hands when he is using the
15 wheelchair to wheel himself.” Do-Williams reasoned that the “ulnar neuropathy was
16 likely from patient’s body habitus and wheeling the wheelchair.” The doctor encouraged
17 Grimes to lose weight and to start to use a walker rather than a wheelchair. (Id. at 10-11.)
18 PROCEDURAL BACKGROUND
19 Grimes filed this 42 U.S.C. § 1983 suit in March 2016. He named one defendant,
20 Kathy Chisum. Chisum died five months later, in August 2016. (Suggestion of Death,
21 Dkt. No. 16.) Her death significantly affected this litigation. I informed Grimes that his
22 claims against Chisum could not survive unless he complied with state probate
23 requirements. (Order Vacating Briefing Schedule, Dkt. No. 21.) He was given thorough
24 instructions on how to comply with these requirements and I stayed the suit to provide
25 Grimes with time. (Dkt. Nos. 21 and 25.) However, Grimes insisted on pursuing his
26 federal suit even though he never complied with state requirements. (Dkt. No. 27.)
27 Therefore, after the stay was dissolved, I dismissed Chisum as a defendant. (Order of
1 Grimes filed an amended complaint, naming as defendants John Dunlap, the Chief
2 Medical Officer of Salinas Valley State Prison and Chisum’s alleged supervisor, and
3 Salinas Valley State Prison along with the warden William Muniz as the representative of
4 the institution. (Id.) I found the Eighth Amendment claims against Dunlap cognizable.
5 (Id.) The ADA (American With Disabilities Act) claims against Dunlap were not
6 cognizable because Title II provides redress for discrimination by a “public entity,” a term
7 which does not include individuals. See 42 U.S.C. §§ 12131(1), 12132. The ADA claims
8 against Salinas Valley were found cognizable. (Id.)
9 Defendants filed a motion for summary judgment. (Dkt. No. 61.) Before Grimes
10 filed an opposition, I terminated defendants’ motion and sent the parties to the Hon. Robert
11 Illman for purposes of settlement. (Dkt. No. 67.) The case did not settle. I then reinstated
12 defendants’ motion and directed Grimes to file an opposition. (Dkt. No. 77.) He did not
13 file one. I will, however, regard the “Exhibits of Concise Statement” he filed before
14 thesettlement proceedings concluded as an opposition. (Dkt. No. 69.)
15 Presently before me are defendants’ reinstated motion for summary judgment;
16 Grimes’s motion to serve Jim Chisum, the representative of Kathy Chisum’s estate; and his
17 motion for a calendar of the undersigned’s hearing dates. (Dkt. Nos. 61, 78, and 79.)
18 Defendants’ motion for summary judgment is GRANTED and Grimes’s motions
19 are DENIED.
20 STANDARD OF REVIEW
21 I. Summary Judgment
22 Summary judgment is proper where the pleadings, discovery and affidavits
23 demonstrate that there is “no genuine dispute as to any material fact and [that] the movant
24 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those
25 which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
26 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a
27 reasonable jury to return a verdict for the nonmoving party. Id.
1 those portions of the pleadings, discovery and affidavits which demonstrate the absence of
2 a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
3 Where the moving party will have the burden of proof on an issue at trial, it must
4 affirmatively demonstrate that no reasonable trier of fact could find other than for the
5 moving party. On an issue for which the opposing party by contrast will have the burden
6 of proof at trial, as is the case here, the moving party need only point out “that there is an
7 absence of evidence to support the nonmoving party’s case.” Id. at 325.
8 Once the moving party meets its initial burden, the nonmoving party must go
9 beyond the pleadings and, by its own affidavits or discovery, set forth specific facts
10 showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c). The Court is
11 concerned only with disputes over material facts and “[f]actual disputes that are irrelevant
12 or unnecessary will not be counted.” Anderson, 477 U.S. at 248. It is not the task of the
13 court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91
14 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying, with
15 reasonable particularity, the evidence that precludes summary judgment. Id. If the
16 nonmoving party fails to make this showing, “the moving party is entitled to a judgment as
17 a matter of law.” Celotex, 477 U.S. at 323 (internal quotations omitted).
18 II. Deliberate Indifference
19 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth
20 Amendment’s proscription against cruel and unusual punishment. Estelle v. Gamble, 429
21 U.S. 97, 104 (1976). A prison official is deliberately indifferent if he knows that a prisoner
22 faces a substantial risk of serious harm and disregards that risk by failing to take
23 reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994) (equating the
24 standard with that of criminal recklessness). The prison official must not only “be aware
25 of facts from which the inference could be drawn that a substantial risk of serious harm
26 exists,” but “must also draw the inference.” Id. Consequently, in order for deliberate
27 indifference to be established, there must exist both a purposeful act or failure to act on the
1 1060 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104
2 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
3 The Supreme Court has further clarified this standard by holding that “it is
4 obduracy and wantonness, not inadvertence or error in good faith, that characterize the
5 conduct prohibited by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319
6 (1986). A mere accident or evaluative mistake is not to be characterized as wanton
7 infliction of unnecessary pain. Estelle, 429 U.S. at 105.
8 A plaintiff must show that his doctors or nurses embarked on a course of “medically
9 unacceptable” treatment in “conscious disregard of an excessive risk to [his] health.”
10 Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004). A claim of mere negligence
11 related to medical problems, or a difference of opinion between a prisoner patient and a
12 medical doctor, is not enough to make out a violation of the Eighth Amendment. Id.;
13 Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
14 DISCUSSION
15 I. Defendants
16 The defendants in this case are or were Kathy Chisum, the Materials and Stores
17 Supervisor at Salinas Valley during the relevant time period; John Dunlap, the Chief
18 Medical Officer of Salinas Valley State Prison and Chisum’s supervisor; and Salinas
19 Valley State Prison (along with the warden as the representative of the institution). I will
20 explain why summary judgment is appropriate for each defendant in order.
21 A. Chisum
22 When this action was filed, Kathy Chisum was the only named defendant.3 Her
23 denial of gloves for Grimes is the event that gave rise to this suit. Her death during the
24 pendency of this suit (Suggestion of Death, Dkt. No. 16) complicated Grimes’s ability to
25 obtain damages; simply put, Grimes had to comply with state probate requirements before
26 his federal suit against her could continue. “The law of the forum state determines whether
27
1 a section 1983 action survives or is extinguished upon the death of a party.” See 42 U.S.C.
2 § 1988(a); Robertson v. Wegmann, 436 U.S. 584, 592-95 (1978).
3 Grimes now wishes to serve Chisum’s husband, Jim Chisum, who is alleged to be
4 the representative of her estate. (Dkt. No. 78.) I gave Grimes thorough instructions on
5 how to comply with state probate requirements to continue this action against Chisum.
6 (Dkt. No. 21.) I told him that he, not the Court, was responsible for complying with state
7 law. I stayed the action in order to give Grimes sufficient time to do so. (Dkt. No. 25.)
8 Grimes admits that he did not meet the state’s probate requirements. (Dkt. No. 73
9 at 2.) However, he insisted on pursuing his federal suit. (Dkt. No. 27.) After I dissolved
10 the stay, I dismissed Chisum as a party because Grimes had not complied with state
11 probate requirements. (Dkt. No. 32 at 3.) Because Grimes never met state probate
12 requirements, his motion to serve Jim Chisum is DENIED. (Dkt. No. 78.)
13 B. Dunlap
14 Dunlap, Chisum’s alleged supervisor, was named as a defendant after Chisum was
15 dismissed. (Order of Service, Dkt. No. 32.) In the amended complaint, Grimes alleges
16 that he requested a medical accommodation but “Kathy Chisum’s boss, CMO Dunlap, said
17 the gloves were not a medical necessity because defendant Chisum told her [sic] that
18 plaintiff Grimes had received multiple pairs of gloves.” (Am. Compl., Dkt. No. 28-2 at 5.)
19 Grimes cites Exhibit B of his amended complaint as the basis for his allegation that Dunlap
20 was somehow responsible for Chisum’s denial of the gloves. But a review of that exhibits
21 shows nothing that would link Dunlap to the denial. Grimes also alleges Dunlap “knew or
22 should have known, about a substantial risk of injury,” (id. at 17), and that as supervisor
23 Dunlap “was aware of the goings-on between plaintiff and Chisum,” (id. at 16.) He also
24 appears to say that Dunlap was misled by Chisum’s assertion that plaintiff had received
25 multiple pairs of gloves: “because defendant Chisum told her [sic] that plaintiff Grimes
26 had received multiple pairs of gloves.”
27 Dunlap declares that he never treated Grimes nor was directly responsible for his
1 Dunlap Decl., Dkt. No. 61-3 at 3.) Dunlap submitted unrebutted evidence that he (i) “was
2 not Decedent Chisum’s direct supervisor” and (ii) “was not consulted before any request
3 [by Grimes to Chisum for gloves] was granted or denied during the alleged time period.”
4 (Id. at 5.)
5 Defendants have also submitted undisputed medical evidence that calluses could not
6 cause the severe pain Grimes claims he experienced. “Calluses, on their own, do not cause
7 significant pain that affects the arm.” (Id. at 6.) In fact, calluses “are not known as
8 harmful skin conditions and are medically insignificant.” (Id., Feinberg Decl., Dkt. No.
9 61-7 at 4.) Grimes complained in March 2014 that he suffered severe pain that would
10 “shoot up and down his arms,” but the nurse noted that that pain was likely caused by his
11 diabetes.4 Grimes has not submitted any competent medical evidence to dispute
12 defendants’ expert medical evidence.
13 Summary judgment will be granted because there is no genuine dispute of material
14 fact. Grimes has not established any liability on the part of Dunlap. The exhibits Grimes
15 cites as his basis for blaming Dunlap contain nothing to support the allegations. If his
16 claim is based on Dunlap’s role as supervisor, there is no respondeat superior liability
17 under section 1983. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Furthermore,
18 defendants have submitted undisputed evidence that Dunlap (i) “was not Decedent
19 Chisum’s direct supervisor” and (ii) “was not consulted before any request [by Grimes to
20 Chisum for gloves] was granted or denied during the alleged time period.” (MSJ, Dunlap
21 Decl., Dkt. No. 61-3 at 5.) And even there was a material disputed fact on liability,
22 Grimes’s allegations amount at most to an allegation of negligence or gross negligence,
23 neither of which is actionable under § 1983. Toguchi, 391 F.3d at 1058-60.
24 In sum, the undisputed record shows that at no time did any defendant know that
25
26
4 The pain could also have been caused by Grimes’s degenerative disc disease of the
lumbar spine, a condition likely worsened by either an injury he suffered when he was in a
27
chain gang, or an injury he suffered when he fell off a toilet he had been standing on, or by
1 Grimes faced a substantial risk of serious harm. There is nothing to show that any prison
2 official was aware of facts from which he or she could draw an inference that Grimes faced
3 a substantial risk of serious harm. Nor is there anything to show that any defendant drew
4 such an inference. Farmer v. Brennan, 511 U.S. 825 (prison official must be aware of
5 facts from which an inference can be drawn and must draw the inference). Defendants
6 have submitted undisputed expert medical evidence that calluses could not have caused the
7 pain of which Grimes complains. He used a wheelchair for a year and a half without
8 suffering from pain or calluses. It was only after his gloves were lost and not replaced that
9 his complaints of calluses and pain arose. He was repeatedly examined. During these
10 many appointments, he seldom complained about calluses or hand pain, and his calluses
11 were never noted to be tender or that the skin was broken or bleeding.
12 Grimes alleges that he “developed blisters, callusses [sic], sores, and sharp pains
13 shooting up the inside [of] both arms in to [sic] my shoulders causing me severe pain” and
14 cites to Exhibit B as support. (Am. Compl., Dkt. No. 28-2 at 11.) But nothing in Exhibit
15 B supports these assertions. In these health care requests and complaints, there is no
16 description of sores or blisters or that the skin was broken or bleeding — in short, that they
17 might have presented a serious medical condition. Because such facts were not noted in
18 the medical reports, Dunlap would not have been aware of any such conditions or the
19 possibility of any risk.5
20 Even when plaintiff’s facts are taken as true, they do not support an allegation that
21 any defendant embarked on a course of “medically unacceptable” treatment in “conscious
22 disregard of an excessive risk to [his] health.” Toguchi, 391 F.3d at 1058-60. Defendants’
23 motion for summary judgment is GRANTED in favor of all defendants as to all Eighth
24
5 Grimes’s complaints about a lack of gloves causing calluses and pain did reach Dunlap
25
through a letter dated October 7, 2014 sent on Grimes’s behalf by the Prison Law Office.
In his October 13 response, Dunlap informed the PLO that Grimes had received
26
replacement gloves on October 10, 2014. (Opp., Dkt. No. 40-42.) Grimes did also submit
many requests to be interviewed by the “C.M.O. of S.V.S.P” regarding wheelchair gloves,
27
but in none of them does he state any facts indicating that his calluses presented any
1 Amendment claims.
2 C. Salinas Valley State Prison
3 Defendants move for summary judgment on Grimes’s ADA claims. Title II of the
4 ADA provides that “no qualified individual with a disability shall, by reason of such
5 disability, be excluded from participation in or be denied the benefits of the services,
6 programs, or activities of a public entity, or be subjected to discrimination by any such
7 entity.” 42 U.S.C. § 12132. To state a claim under Title II of the ADA, a plaintiff must
8 allege four elements: (i) he is an individual with a disability; (ii) he is otherwise qualified
9 to participate in or receive the benefit of some public entity’s services, programs, or
10 activities; (iii) he was either excluded from participation in or denied the benefits of the
11 public entity’s services, programs or activities, or was otherwise discriminated against by
12 the public entity; and (iv) such exclusion, denial of benefits, or discrimination was by
13 reason of his disability. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).
14 Summary judgment will be granted in favor of defendants. The undisputed record
15 shows that Grimes was not denied gloves because of his disability. Rather, he was denied
16 gloves because he lost the pair he had been given.
17 Defendants’ motion for summary judgment regarding the ADA claims is
18 GRANTED in favor of all defendants.
19 D. Qualified Immunity
20 Defendant Dunlap contends he is entitled to qualified immunity. The defense of
21 qualified immunity protects government officials “from liability for civil damages insofar
22 as their conduct does not violate clearly established statutory or constitutional rights of
23 which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
24 (1982). A court considering a claim of qualified immunity must determine whether the
25 plaintiff has alleged the deprivation of an actual constitutional right and whether such right
26 was clearly established such that it would be clear to a reasonable officer that his conduct
27 was unlawful. See Pearson v. Callahan, 555 U.S. 223, 235–36 (2009). “If no
1 || necessity for further inquiries concerning qualified immunity.” Jd. at 201.
2 Defendant Dunlap is entitled to qualified immunity. As noted in detail above,
3 || undisputed medical evidence shows that Grimes’s calluses could not have caused the pain
4 || he describes. It also shows that Grimes’s calluses were never noted in the medical reports
5 || as tender or showed signs of broken skin or bleeding. Because such conditions were not
6 || noted in the medical reports, Dunlap would not have been aware of any risk to Grimes. He
7 || was never his treating physician, nor did he even meet him until well after the events at
8 || issue here occurred. Therefore, Dunlap is entitled to summary judgment on the additional
9 || basis that he is protected by qualified immunity.
10 CONCLUSION
1] Defendants’ motion for summary judgment is GRANTED. (Dkt. No. 61.)
Grimes’s motion to serve Jim Chisum, Kathy Chisum’s husband, is DENIED. (Dkt. No.
E 13 || 78.) Grimes’s motion for a calendar of hearing dates is DENIED. (Dkt. No. 79.)
S 14 The Clerk shall terminate all pending motions, enter judgment in favor of
3 15 defendants, and close the file.
16 IT IS SO ORDERED.
17 || Dated: September 23, 2019 M.Qe
1B AM H-ORRI
19 United States District Judge
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