Grimes v. Chisum

• Court: District Court, N.D. California
• Decided: September 23, 2019
• Docket: 3:16-cv-01488
• Status: Unknown

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 20 21 22 23 24 25 26 27 28