ORDER AND FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

Introduction

Plaintiff is a state prisoner, proceeding through counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' summary judgment motion. (ECF No. 56). For the reasons stated herein, the undersigned recommends that defendants' summary judgment motion be denied.

Legal Standard for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 56(c).) "Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 Advisory Committee Notes to 2010 Amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.

Consequently, if the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material in support of its contention that such a dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. ... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 586 (citation omitted). Plaintiff's Claims

This action is proceeding on the original complaint against defendants Koelling and Martinez. (ECF No. 1.) Plaintiff alleges that on April 19, 2009, defendants came to his cell and told him to move to the upper bunk. (Id. at 9.) Plaintiff told defendants that he had a valid lower bunk chrono. (Id.) Defendants told plaintiff that they did not care and told him to move to the upper bunk. (Id.) As a result of being housed in the upper bunk, a few days later plaintiff fell from the upper bunk. (Id. at 10.) Plaintiff suffered a concussion and a back injury. (Id.)

Plaintiff alleges that defendants violated the Eighth Amendment by making him move to the upper bunk. Discussion

Defendants move for summary judgment on the grounds that they did not violate plaintiff's Eighth Amendment rights and on the grounds that they are entitled to qualified immunity.

Legal Standard for Eighth Amendment Claim

A prison official's deliberate indifference to an inmate's serious medical needs constitutes cruel and unusual punishment in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Johnson v. Meltzer, 134 F.3d 1393, 1398 (9th Cir. 1998). The Eighth Amendment also prohibits deliberate indifference that subjects an inmate to an excessive risk of future harm. Helling v. McKinney, 509 U.S. 25, 33 (1993).

To state a constitutional violation under the Eighth Amendment due to deliberate indifference, a prisoner plaintiff must allege both that the deliberate indifference of medical personnel was objectively serious, and that the defendant officials acted with a subjectively culpable state of mind. Estelle, 429 U.S. 103. The prisoner plaintiff must allege that "the official knew of and disregarded a substantial risk of serious harm to [the prisoner's] health or safety." Johnson v. Meltzer, 134 F.3d 1393, 1398 (9th Cir. 1998) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The court must focus on what the prison official actually perceived, not what he or she should have known. Farmer, 511 U.S. at 837-38.

Deliberate indifference requires that defendants purposefully ignore or fail to respond to the prisoner's pain or medical need. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (deliberate indifference may be found where prison officials "deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care."). However, neither an inadvertent failure to provide medical care by prison authorities, nor negligence or malpractice by medical staff, constitutes deliberate indifference. Estelle, 429 U.S. at 107.

Legal Standard for Qualified Immunity

In analyzing a claim of qualified immunity, a court must examine (1) whether the facts as alleged, taken in the light most favorable to plaintiff, show that the defendant's conduct violated a constitutional right, and (2) if a constitutional right was violated, whether, "in light of the specific context of the case," the constitutional right was so clearly established that a reasonable official would understand that what he or she was doing violated that right. See Saucier v. Katz, 533 U.S. 194, 201-02 (2001). If no constitutional right was violated, the inquiry ends and the defendant prevails. Saucier, 533 U.S. at 201.

To meet the "clearly established" requirement, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). This requires defining the right allegedly violated in a "particularized" sense that is "relevant" to the actual facts alleged. Id. "Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct." Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

Courts are not required to address the two inquiries in any particular order. Rather, courts may "exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 243 (2009).

Objective Component of Deliberate Indifference: Risk of Harm

Defendants argue that they are entitled to summary judgment because plaintiff did not meet the objective component of deliberate indifference in that he did not face a substantial risk of harm if moved to an upper bunk.

Defendants first argue that plaintiff had no medical necessity for a lower bunk chrono on April 19, 2009. In support of this claim, defendants refer to the declaration of Dr. Bruce Barnett, the Chief Medical Receiver, Receiver's Office of Legal Affairs for the California Department of Corrections and Rehabilitation ("CDCR"). (ECF No. 65-1 at 8.) In his declaration, Dr. Barnett lists the medical records he reviewed in forming his professional medical opinion. (Id. at 10.)

Those records, listed chronologically, indicate that Dr. Barnett reviewed two entries from plaintiff's medical records prior to the April 19, 2009 incident: 1) 7/21/08 chrono approved for "bottom bunk," 1 year, cane 1 year, tennis shoes 1 year. No mopping or scrubbing floors for one year"; and 2) 1/6/09 — as reported in progress note, dated 7/28/11—MRI Lumbar spine, degenerative disc disease with large disc protrusion centrally and slightly to left. (Id. at 10.)

Dr. Barnett states that, in his professional opinion, plaintiff did not require a lower bunk chrono in April 2009:

(ECF No. 56-1 at 13, 16.)

In his opposition, plaintiff attached a first level appeal response dated January 10, 2006, and signed by Chief Physician Dr. Thor. (ECF No. 73-1 at 26-27.) In this grievance, plaintiff claimed to have lumber spondylosis and lumbar discogenic narrowing of the disk that caused him severe pain. (Id. at 26.) In the response, Dr. Thor wrote that Dr. Tan evaluated plaintiff on January 6, 2006, and at that time plaintiff was placed on Naproxen and Baclofen for pain. (Id. at 27.) Dr. Thor wrote that Dr. Rallos completed an ADA 1845 form on January 6, 2006, verifying that plaintiff was a mobility impaired inmate and "your chronos will be renewed before their expiration date." (Id.)

In his opposition, plaintiff also submitted a 6 month lower bunk chrono he received from Dr. Traquina on September 13, 2006. (Id. at 29.) Plaintiff also submitted another 6 month lower bunk chrono he received on June 18, 2007. (Id. at 31.) The undersigned cannot make out the name of the doctor who signed this chrono. On July 2008, plaintiff's lower bunk chrono was renewed for one year. (Id. at 33.) This chrono is signed by Ken Collinsworth and the Chief Medical Officer. (Id.)

Plaintiff also has submitted a memorandum dated August 19, 2008, prepared by Dr. Rallos, Chief Physician at California State Prison-Solano ("CSP-Solano"). (Id. at 23-24.) This memorandum was prepared in response to an administrative appeal filed by plaintiff alleging that he suffered chronic back pain. (Id.) As relief plaintiff requested, in part, a lower bunk chrono. (Id.)

Dr. Rallos states, in relevant part,

(Id.)

Although not clearly stated in his declaration, it appears that Dr. Barnett based his opinion that plaintiff did not meet the criteria for a lower bunk chrono in April 2009 on his review of plaintiff's medical records after the April 2009 incident. In his declaration, Dr. Barnett states that he reviewed plaintiff's medical records from 2008, but he does not identify them in his declaration. Dr. Barnett identifies only one medical record that he reviewed from prior to the April 2009 fall, i.e., the January 2009 MRI. Dr. Barnett discussed the January 2009 MRI in the section of his declaration addressing his opinion that the April 2009 fall did not cause plaintiff to suffer any further harm to his back. Dr. Barnett did not clearly base his opinion that plaintiff did not require a lower bunk chrono in April 2009 on the January 2009 MRI.

Plaintiff has presented evidence that he had chronos for a lower bunk based on back pain from at least 2006, i.e., approximately three years before the April 2009 incident. These chronos were issued by several different physicians. There is no indication in Dr. Barnett's declaration that he reviewed any of the medical records relevant to the issuance of these chronos.

In the summary judgment motion, defendants argue that plaintiff's medical exams following the incident, as listed in Dr. Barnett's declaration, demonstrate that plaintiff did not require a lower bunk chrono. These records are summarized below.

On August 20, 2009, plaintiff reported "bad back spasms ...I need to get a lay-in." (ECF No. 56-1 at 11.) The exam finding was normal and plaintiff was advised to avoid strenuous activity. (Id.) On January 7, 2010, plaintiff reported that his back condition was becoming worse. (Id.) The exam results were "unremarkable, walks with cane." (Id.) On July 14, 2010, plaintiff received a bottom bunk chrono for one year. (Id. at 12.) A progress note dated December 20, 2010, states that plaintiff sought a double mattress and an extra pillow. (Id.) Plaintiff was assessed with moderate to severe degenerative disc disease and was found eligible for accommodations; plaintiff was given an extra mattress but denied an extra pillow. (Id.) On July 20, 2012, plaintiff reported that his back went out. (Id.) On December 6, 2012, plaintiff was diagnosed with lumbar degenerative disc disease and ordered to receive physical therapy. (Id. at 13.)

Plaintiff's medical records after the April 2009 incident are relevant in evaluating whether plaintiff required a lower bunk chrono at that time. However, because Dr. Barnett did not review plaintiff's medical records prior to the April 2009 incident, the undersigned finds that his declaration creates a dispute as to whether plaintiff medically required a lower bunk chrono in April 2009.1

Defendants also cite plaintiff's May 12, 2010 request that he not be removed from his job, his alleged attack on staff on October 2010, and his alleged participation in a riot in October 4, 2012 as evidence that he did not require a lower bunk chrono in April 2009. (Id.) It does not appear that Dr. Barnett based his opinion that plaintiff did not require a lower bunk chrono in April 2009 on these somewhat remote incidents.

Defendants also argue that plaintiff's lack of harm from the fall demonstrates that placing him in the upper bunk did not subject him to a substantial risk of serious harm. In support of this argument, defendants refer to Dr. Barnett's declaration and the entry in plaintiff's medical records from his trip to the emergency room the day after the fall. (ECF No. 56-1 at 11.) Plaintiff was diagnosed with post-concussion syndrome and cervical sprain by the emergency room doctor. (Id.) Regarding this diagnosis, Dr. Barnett states,

(ECF No. 56-1 at 14-15.)

Attached as an exhibit to Dr. Barnett's declaration is the April 23, 2009 report by the emergency room physician who examined plaintiff. (Id. at 25-27.) This report states, "Neuro: Positive for headaches, loss of consciousness." (Id. at 25.) The emergency room doctor diagnosed plaintiff with post-concussion syndrome and cervical sprain. (Id. at 27.)

Dr. Barnett's declaration calls into question the diagnosis of the emergency room physician as well as the duration and extent of plaintiff's injuries. For this reason, the undersigned finds that whether plaintiff suffered injuries as a result of his fall, as well as the nature and extent of those injuries, are disputed material facts.

Defendants also argue that plaintiff did not face a serious risk of harm from being placed in the upper bunk because there is no evidence that plaintiff's being placed in upper bunk caused his fall. In support of this argument, defendants cite Dr. Barnett's declaration:

(ECF No. 56-1 at 16.)

In his declaration, Dr. Barnett also states that the Inmate Medical Services Policies and Procedures ("IMSP & P") state that the primary care provider shall consider low bunk accommodation in several circumstances including back surgery in the past 6 months and severe orthopedic conditions in the upper extremity that prevent climbing. (Id. at 16.) Dr. Barnett's opinion that climbing in and out of a bunk does not require the use of the back is in contrast to the IMSP & P guidelines that back surgery as well as severe orthopedic conditions in the upper extremity may warrant low bunk accommodations.

As discussed above, plaintiff has presented evidence that he was issued lower bunk chronos from three years prior to April 2009 due to back pain. Dr. Barnett apparently did not review plaintiff's medical records relevant to the issuance of these chronos.

Significantly, the undersigned also questions defendants' ability to offer expert testimony seeking to rewrite history. It is undisputed that plaintiff had been issued lower bunk chronos by his medical providers. Defendants do not contend that they ignored the chromos because they did not believe that they were medically necessary. Therefore, defendants' expert Dr. Barnett now attempting to question the necessity of the chronos appears largely irrelevant. "It is well established that deliberate indifference may be shown when prison officials ignore express orders from a prisoner's treating physician." See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).

For the reasons discussed above, the undersigned finds that whether plaintiff being housed in the upper bunk caused his fall is a disputed material fact.

For the reasons discussed above, the undersigned recommends that defendants' motion for summary judgment on the grounds that plaintiff did not face a serious risk of harm from being placed in the upper bunk be denied because of the disputed material facts.

Subjective Component of Deliberate Indifference: Disregard Risk of Harm

Defendants move for summary judgment on grounds that they did not knowingly disregard any risk of harm to plaintiff by moving him to the upper bunk.

It is undisputed that when defendants came to plaintiff's cell and told him to move to the upper bunk, plaintiff told them that he had a lower bunk chrono but could not produce it. (Plaintiff's Deposition Transcript at 12-12; defendants' declarations (ECF Nos. 56-1 at 2, 5.)). It is also undisputed that the change in bunks was not punitive. According to plaintiff, the change in bunks was made to accommodate plaintiff's cellmate, Ronnie Winn, who also had a lower bunk chrono. (ECF No. 73-1 at 56-57.)

Plaintiff has presented evidence that when defendants told him to move to the upper bunk, he pointed defendants to a sign on his door indicating that he was disabled. In his declaration attached to plaintiff's opposition, inmate Winn states that when defendants told plaintiff to move to the upper bunk, plaintiff told defendant Koelling that he could not find the lower bunk chrono but directed him to the ADA sign on the door. (ECF No. 73-1 at 57.) At his deposition, plaintiff testified that he directed defendants to the blue sign, i.e., ADA sign, on the door. (Plaintiff's Deposition at 12: 23-25.) One of the defendants said, "I don't care about that. You still have to get on the top bunk." (Id. at 12: 25-13: 1.) The blue sign said "DNM" and "ADA." (Id. at 13: 2-5.) The sign designated plaintiff as disabled. (Id. at 13: 10-12.)

At his deposition, defendant Koelling testified that inmates with physical disabilities can have a blue sign affixed to the outside of their cell. (Koelling deposition transcript at 35: 13-16.) If the inmate has a mobility impairment, the sign says, "DNM." (Id. at 36: 1-5.) The signs are approximately three inches by five inches. (Id. at 37: 22-24.) Defendant Koelling testified that he could not recall if plaintiff had a blue sign on his cell door. (Id. at 55: 14-16.) Defendant Koelling testified that if there was a blue sign on plaintiff's door, that is something he should have noticed. (Id. at 55: 17-20.)

At his deposition, defendant Martinez testified that, to his recollection, he did not notice a blue "DNM" sign on plaintiff's cell door on the day of the incident. (Martinez declaration at 45: 11-14.) Defendant Martinez also testified that if he had seen a "DNM" sign on plaintiff's cell door, he would not have required plaintiff to move to the upper bunk because that would have been some indication that he was mobility impaired. (Id. at 55: 6-11.)

Plaintiff has presented evidence that he told defendants that he had a lower bunk chrono, although he could not find it, and that he directed defendants to a sign on his door indicating that he was mobility impaired. These facts, taken in the light most favorable to plaintiff, demonstrate that defendants knowingly disregarded a serious risk of harm to plaintiff. The undersigned further finds that a reasonable officer would have known, under these circumstances, that moving plaintiff to the upper bunk violated his Eighth Amendment rights. As noted above, at his deposition, defendants Martinez testified that if he saw the sign on plaintiff's door indicating that he was mobility impaired, he would not have moved plaintiff to the upper bunk. For these reasons, defendants are not entitled to summary judgment as to this claim.2

Defendants' Declarations

In his opposition, plaintiff argues that defendants' declarations contain "false" statements that should not be accepted by the court. In particular, plaintiff argues that at their depositions, conducted February 14, 2014, both defendants stated that they could not recall the events of April 19, 2009. In contrast, in their declarations submitted in support of the pending summary judgment motions, signed June 4 and 5, 2013, both defendants made statements demonstrating some recall of the events of April 19, 2009. (ECF No. 56-1 at 2-3, 5-6.) In amended responses to a request for admission dated May 16, 2012, defendants stated that they did not independently recall the incident, but that the July 9, 2009 memorandum refreshed their recollection. (ECF No. 73-1 at 85, 93.)

The general rule in the Ninth Circuit is that a party cannot artificially manufacture a genuine issue of fact, and thereby avoid summary judgment, by submitting an affidavit which contradicts prior sworn testimony. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). "[I]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Id. However, because of the jury's role in resolving questions of credibility, courts have urged caution when applying the sham affidavit rule. Id., citing Kennet Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980). To this end, the Ninth Circuit requires the court to make certain factual findings before striking a declaration as a sham. Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). First, the court must find that the affidavit is a sham, or created specifically to avoid summary judgment; and second, that the inconsistency between the prior sworn testimony and the declaration is "clear and unambiguous." Id.

To justify invocation of the sham affidavit rule, "the inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous." Id. For example, the Ninth Circuit upheld a district court striking sham affidavits where the deponent could not remember the answers to approximately 185 questions in his deposition, but suddenly recalled them "with perfect clarity" in his declaration submitted with his response to the motion for summary judgment. Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012). "Several of our cases indicate that a district court may find a declaration to be a sham when it contains facts that the affiant previously testified he could not remember." Id. at 1081. "In Scamihorn v. General Truck Drivers, we implied this result in dicta when we noted that a declaration could be considered a sham if the declarant provides information which he had testified he could not recall. 282 F.3d 1078, 1085 n.7 (9th Cir. 2002)." Id.

The undersigned is troubled by the statements in defendants' declarations indicating their ability to recall the events of April 19, 2009, which contrasts with their inability to recall the events at their depositions. However, for purposes of this pending motion what occurred between plaintiff and defendants on April 19, 2009 is largely undisputed. Moreover, the undersigned recommends herein denial of defendants' motion. For these reasons, at this time the undersigned need not reach the credibility issue raised by plaintiff in his opposition.

Conclusion

For the reasons discussed above, the undersigned recommends that defendants' summary judgment motion be denied.

On May 22, 2014, defendants filed a motion for an extension of time to file their reply. (ECF No. 78.) Good cause appearing, this motion is granted. Defendants' reply is deemed timely filed.

Accordingly, IT IS HEREBY ORDERED that defendants' motion for an extension of time to file their reply (ECF No. 78) is granted; and

IT IS HEREBY RECOMMENDED that defendants' summary judgment motion (ECF No. 56) be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).