Gregory Allen v. Washington State Department of Corrections; SGT. Jason...

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA GREGORY ALLEN, CASE NO. 23-CV-5746 BHS Plaintiff, ORDER 9 v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS; and SGT. Jason Kaehler; and DOES 1- 10, Defendant.

THIS MATTER is before the Court on defendant Washington State Department of Corrections’ (DOC) motion for summary judgment, Dkt. 45.

Plaintiff Gregory Allen was incarcerated in DOC facilities from 2000 to 2023.

Dkt. 47 at 2. He claims that he was raped in prison in 2009, and that he suffers from post- traumatic stress disorder as a result. Id. He claims the Americans with Disabilities Act (ADA) requires DOC to provide him a single cell as an accommodation for this disability. Dkt. 21 at 3. Allen also claims DOC violated the ADA by denying him access to a wheelchair. Id. at 3, 6–7. Allen asserts a separate 42 U.S.C. § 1983 claim based on his allegation that former DOC Sergeant Jason Kaehler violated the Eighth Amendment when he acted with deliberate indifference to Allen’s serious medical needs, by “depriv[ing] him of medical equipment for a protracted period of time.” Id. at 5–6.

4 DOC seeks summary judgment on all three claims, asserting that Allen’s ADA claims fail because he did not identify a service, program, or activity from which he was excluded based on his disability, and that he has no evidence that DOC intentionally discriminated against him. Dkt. 45 at 2. It also contends that Allen’s § 1983 claim fails because Allen has no evidence that Kaehler acted with deliberate indifference when removing his wheelchair pursuant to Allen’s Health Status Report (HSR). It further contends that, even if Kaehler had acted with such indifference, Kaehler is entitled to qualified immunity because Allen has identified no authority clearly establishing that Kaehler’s conduct was unconstitutional. Id. 13 I. BACKGROUND 14 The following facts are taken from Allen’s complaint, the parties’ briefs, deposition transcripts, and a report summarizing Allen’s DOC records created by the State’s expert, Dr. Mario Paparozzi.1 17 Allen has been in and out of prison for at least 25 years. Dkt. 47 at 2. After he filed this case, he has been released. Id. Allen alleges that when he returned to prison in

1 Allen’s declaration challenges DOC’s version of the facts “paragraph by paragraph,” Dkt. 49 at 2, including its references to facts cited in Paparozzi’s report. Allen asserts this report is “factually inaccurate, conclusory, contain errors, and hearsay representations of disputed fact.”

21 Id. However, Allen submits no evidence supporting his version of the facts, and with few exceptions, Allen does not challenge the underlying facts but rather the conclusions drawn from them.

1 August 2009, his cellmate sexually assaulted him.2 Id. at 2. As a result of this alleged incident, Allen’s mental health provider declared that Allen experienced symptoms of post-traumatic stress disorder.3 Waggoner Deposition, Dkt. 48, Ex. A at 10–11. In May 2010, Allen requested single-cell housing in the general population, but DOC denied his request. Dkt. 45 at 5; Allen Decl., Dkt. 49 at 3. He subsequently refused placement in a shared-housing unit and, as a result, he received three disciplinary infractions and was placed in solitary confinement. Allen Decl., Dkt. 49 at 3; Paparozzi Report, Dkt. 46, Ex. A at 37.

9 Allen continued to request single-cell accommodations throughout his incarceration. Although he acknowledges that he was briefly placed in a single cell in 2019, Dkt. 49 at 5, DOC staff, administrators, and multiple committees repeatedly denied his requests for reasons documented in Paparozzi’s report: 13 • Mental health and medical staff determined “that there is no basis for a single cell housing assignment.” Dkt. 46, Ex. A at 33.

14 • ADA compliance manager informed Allen “that there is no documentation to support the ADA accommodation as requested.” Id. at 15 39. • An ADA facility coordinator stated “that [Allen] does not qualify for the 16 accommodation requested.” Id. • An ADA headquarters classification officer reminded Allen that “these 17 same issues” have been addressed five times in the past six months. Id. at 41.

19 2 Allen submits no evidence that the State knew about the alleged assault before he requested a single cell in 2010. Rather, the State’s expert report shows that Allen did not report the incident until his April 2011 classification appointment. Paparozzi Report, Dkt. 46, Ex. A at 33. Even then, Allen did not provide specific details about the assault and there is no documentation in Allen’s files corroborating his claim. Id. at 38–39.

3 Allen submits no evidence that Waggoner was his treating provider near or at the time of the incident, nor does he indicate when Waggoner first evaluated and treated his symptoms.

1 • A DOC deputy director reported that Allen had received mental health appraisals on three different dates, and “none of these assessments 2 indicated the need for ADA accommodations.” Id. at 43. • A DOC facility superintendent informed Allen that his accommodation 3 requests were reviewed, and it was decided that he “did not need ADA accommodations.” Id. at 44.

4 • “Allen does not meet the criteria for single cell placement.” Id. at 46.

5 DOC also continued to assign Allen to shared-cell housing, which he either refused or was unable to make work. Paparozzi Report, Dkt. 46 at 37-50; Allen Decl., Dkt. 49 at 4 (“It is inaccurate to say that I was not in good faith trying to find a way to make DOC’s refusal to accommodate my disabilities with single cell housing work. I did make effort several times.”). For reasons disputed by the parties, DOC punished Allen with disciplinary infractions and placed him in administrative segregation or the Intensive Management Unit (IMU), where he had a single-person cell, but was on 23-hour per day lockdown.4 Dkt. 45 at 5; Contrast Dkt. 47 at 5 (Allen was “punished for asserting his rights.”) (emphasis added) with Dkt. 45 at 5 (Allen was “repeatedly infracted for refusing housing assignments.”) (emphasis added).

16 In August 2020, a committee composed of Allen’s mental health, custody, and medical providers reversed their earlier position, and jointly recommended that he be assigned to a single cell. Throgmorton Decl., Dkt. 46 at 2; id., Ex. C at 69. However, Between 2000-2023, Allen received 130 serious disciplinary infractions and was moved between prison facilities more than 500 times. Dkt. 46 at 35.

1 once again, the headquarters level, multidisciplinary panel reviewed and denied his request. Id., Ex. C at 71.

3 That same month, one of Allen’s medical providers, Jennifer Meyers, PA, issued a HSR approving Allen for access to compression stockings, the unrestricted use of a wheelchair, and limiting his standing time to ten minutes. Allen Decl., Dkt. 49, Ex. A at 12. The HSR was set to expire one year later. Id. In October 2020, a DOC ADA coordinator approved an assistant to push Allen in his wheelchair for long distances. Id., Ex. B at 14.

9 The incident at the center of this case occurred on December 30, 2020, when Allen was housed in the IMU, also referred to as “solitary.” Dkt. 49 at 6; Ex. D at 18. Allen’s account of the events has evolved over time. Allen’s complaint alleges that Sgt. Kaehler observed Allen walking in his cell and then “ran to” PA Meyers and “directed” her to change his equipment needs.” Dkt. 21 at 4. Allen claims that in response to Kaehler’s request, Meyers amended Allen’s HSR—without conducting a physical exam—to limit his wheelchair accommodation for only “long distances,” denying Allen access to a wheelchair for short distances and within his cell. Id., Ex. C at 16, 18. Allen alleges that only minutes later, Kaehler returned to his cell with the modified HSR and “laugh[ed]” while “he exited” the cell with his leg brace and wheelchair. Id. Neither Kaehler nor Meyers recall the circumstances surrounding the change in Allen’s HSR. Kaehler Deposition, Dkt. 48, Ex. D at 65–66, 73–74; Meyers Deposition, Dkt. 48, Ex. E at 130.

21 Allen’s account changed in his declaration and response to the summary judgment motion. He now claims that before Kaehler requested the HSR change from Meyers, Kaehler denied him access to his wheelchair for a classification appointment. Dkt. 49 at 6. According to Allen, using the wheelchair required DOC to either remove his handcuffs or have someone push him, which he did not qualify for. Id. at 6. Allen asserts he complained, and Kaehler asked why he needed a wheelchair. Id. Allen refused to answer, and Kaehler sought to have his accommodation changed. Id. Allen provides no evidence that Kaehler failed to follow the original HSR or that he had the authority to change it.

7 In June 2021, Allen and his advanced care practitioner asked DOC’s facility medical director, Dr. MaryAnn Curl to help resolve a disagreement about Allen’s care.

9 Curl Deposition, Dkt. 48, Ex. B at 34. Dr. Curl met with Allen to discuss his concerns. Id. at 35. Following the meeting, Dr. Curl issued Allen a new HSR, approving accommodations for housing—no stairs and no top bunk; work—lifting and standing restrictions; and medical equipment—compression stockings, crutches, leg brace, shower chair, and unlimited use of a wheelchair. Allen Decl., Dkt. 49, Ex. E at 20. The HSR also expressly permitted Allen to use his shower chair and wheelchair in his cell while housed in IMU. Id. 16 Allen claims DOC violated the ADA by failing to reasonably accommodate his physical and mental disabilities, specifically by repeatedly denying him a single-cell, and by depriving him of the use of a wheelchair for short distances and in his cell. Dkt. 21.

19 Allen’s § 1983 claim asserts that Kaehler violated the Eighth Amendment when he was deliberately indifferent to Allen’s serious medical needs, by using his position to deprive Allen of access to his wheelchair.5 Id. at 5–6.

3 DOC argues Allen has provided no evidence to establish the essential elements of any of his three claims. Dkt. 45.6 5 II. DISCUSSION A. Summary Judgment Standard 7 Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show 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). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Id. at 248.

15 The moving party bears the initial burden of showing that there is no evidence that supports an element essential to the nonmovant’s claim. Celotex Corp. v. Catrett, 477 18 5 The Court previously dismissed Allen’s state law claims for false imprisonment, negligent infliction of emotional distress, intentional infliction of emotional distress, and negligence. Dkt. 40. Allen denies that he seeks a claim for injunctive relief. Dkt. 45.

6 DOC moves to strike Allen’s declaration and portions of his counsel’s declaration that challenge Paparozzi’s report or refer to records not before the Court. Dkt. 50 at 7. This motion is DENIED. The Court notes that a “bald assertion” of fact is insufficient to defeat a motion for summary judgment. See Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). DOC also asserts that Allen’s release from custody renders any claim for injunctive relief moot. Dkt. 45 at 2. Allen denies he seeks injunctive relief. Dkt. 47 at 6 1 U.S. 317, 322 (1986). A defendant may meet this burden by pointing out that there is an absence of evidence necessary to support such claim. Id. at 325; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the movant has met this burden, the “nonmoving party must produce evidence to support its claim or defense.”

5 Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1188 (9th Cir. 2016) (internal citations omitted).

7 To avoid summary judgment, the nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts. See Matsushita Elec.

9 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56(e) requires that the nonmoving party identify, with reasonable particularity, the specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256; see also Galen v. Cty. of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007) (“Bald assertions that genuine issues of material fact exist are insufficient.”). It is not the task of the Court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996).

16 Allen argues that DOC failed to meet its “initial burden” of showing that there are no disputes of material fact, primarily contending that the defendant’s expert report is inaccurate. Dkt. 47 at 11. However, Allen misconstrues the summary judgment standard.

19 DOC need only “point out” that there is an absence of evidence to support Allen’s claims. See Celotex, 477 U.S. at 325. It need not introduce evidence that affirmatively negates a defendant’s claim. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990).

22 DOC is entitled to judgment as a matter of law if Allen fails to make a sufficient showing on an essential element of his claim, upon which he bears the burden of proof. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

3 B. ADA Claims against DOC 4 The ADA prohibits discrimination on the basis of disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002); see 42 U.S.C. § 12132. To prevail on his claim under Title II of the ADA, Allen must prove: (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of DOC’s services, programs, or activities; (3) he is either excluded from or denied these benefits or was otherwise discriminated against by DOC; and (4) such exclusion, denial of benefits, or discrimination was by reason of his disability. Simmons v. Navajo Cnty., Ariz., 609 F.3d 11 1011, 1022 (9th Cir. 2010) (quoting McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004)). To recover damages, as opposed to injunctive relief, Allen must further demonstrate that DOC acted with deliberate indifference to his need for accommodation.

14 Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). Deliberate indifference, in this context, requires that the defendant “knew that harm to a federally protected right was substantially likely and failed to act upon that likelihood.” Id. at 1139. A failure to act “must be a result of conduct that is more than negligent, and involves an element of deliberateness.” Id. 19 Allen argues that DOC violated the ADA by refusing to assign him to a single- person cell and by denying him access to a wheelchair. Dkt. 47 at 2. Specifically, he contends that DOC’s denial of his wheelchair caused him to miss a “call-out for classification,” an appointment where inmates and DOC staff review the inmate’s behavior and determine if a change in classification—including accommodations—is necessary. Id. at 9. Assuming without deciding that Allen is a qualified individual with a disability for purposes of the ADA, the primary issues in dispute are (1) whether the ADA required DOC to provide Allen with single-cell accommodation, and (2) whether the ADA required DOC to provide Allen with unrestricted access to his wheelchair.

6 1. Allen has not established that DOC’s refusal to house him in a single cell violated the ADA.

As an initial matter, DOC argues that single-cell accommodations do not qualify as services, programs, or activities under the ADA. See 42 U.S.C. § 12132. The Court disagrees. The statutory phrase “services, programs, or activities” is to be construed broadly. Barden v. City of Sacramento, 292 F.3d 1073, 1077 (9th Cir. 2002). The Ninth Circuit has cautioned district courts against “hair-splitting arguments” in deciding whether discrete functions of government entities come within the scope of ADA liability, and instead focus on whether it is a “‘normal function of a governmental entity.’” Id. at 1076 (quoting Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999)).

DOC offers a limited number of single-cell housing accommodations. Curl Deposition, Dkt. 46, Ex. B at 63–64. Single-cell requests are evaluated by a DOC committee based on multiple objective factors, including “severe medical disability; serious mental illness; sexual predator; likely to be exploited or victimized by others; other special needs; and/or maximum custody.” Paparozzi Report, Dkt. 46 at 42 (citing DOC Policy 400.020); Curl Deposition, Dkt. 46, Ex. B at 63–64 (explaining that the single cell committee considers an inmate’s “potential for violence,” “medical issues,” and inmates who have “an absolute inability to house with someone else,” such as those with autism spectrum disorder). Although these assignments are often used to accommodate inmates with qualifying disabilities, DOC could, in theory, violate the ADA by excluding an inmate from single-cell housing solely because of that inmate’s disability. The Court therefore finds that assigning single-cell accommodations is a normal function of DOC that clearly falls within the scope of the ADA.

8 However, Allen has no evidence that DOC violated the ADA by denying him access to a single cell. DOC’s records indicate that Allen’s requests for single-cell accommodations were consistently, appropriately reviewed by staff and administrators.

11 The decisions to deny Allen’s requests were not made by a single staff member, but by multiple committees, administrators, and medical personnel over a period of more than ten years. See Paparozzi Report, Dkt. 46, Ex. A at 37-50. Allen has provided no evidence suggesting that DOC procedures were improper in any way; rather, he merely disputes the outcome of those determinations as discriminatory.

16 In addition, Allen provides no evidence that he was precluded from single-cell assignment on the basis of his disability. Allen only asserts that his mental disabilities “qualified” him for a single-cell. Dkt. 47 at 10. This is not enough. See Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 922 (9th Cir. 2001) (Conclusory statements unsupported by the record are insufficient to defeat a motion for summary judgment). A prison does not violate the ADA by “simply failing to attend to the medical needs of disabled prisoners.” Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996). Allen must identify sufficient facts that show he was denied single-cell accommodations because of his disability. He fails to make that connection here.

3 Even viewed in the light most favorable to him, the evidence does not support Allen’s claim that DOC’s denial of a single-cell accommodation violated the ADA.

5 DOC’s motion for summary judgment on Allen’s single-cell ADA claim is GRANTED, and this claim DISMISSED with prejudice.

7 2. Allen has not provided sufficient evidence to show that DOC violated the ADA by modifying his HSR to approve a wheelchair accommodation for long 8 distances only.

9 Allen claims that DOC violated the ADA by modifying his HSR to deny him access to medically necessary items, including unlimited access to a wheelchair and a leg brace, for a period of approximately six months. Dkt. 21 at 4. For support, Allen relies on the circumstances and timing of PA Meyers’s decision to modify his HSR, noting that the restriction on his wheelchair was made without a physical exam and occurred only after the custody officer, Kaehler, noticed him walking in his cell. Dkt. 47 at 9 (“[I]n this situation, the qualified medical provider based her revocation upon hearsay statements rather than direct examination.”). He contends that his HSRs issued before and after the change demonstrate that he needed these medical accommodations the entire time. Id. at 9–10. Allen emphasizes that DOC’s medical director, Dr. Curl, “confirmed Allen’s conditions and ultimately restored accommodations.” Dkt. 47 at 5; see Allen Decl., Dkt.

20 49, Ex. E at 19.

21 However, Allen submits no evidence that DOC’s decision to limit his wheelchair access, while housed in the IMU, was an unreasonable accommodation under the ADA.

1 Allen relies solely on his other HSRs that granted an unlimited wheelchair accommodation. Dkt. 47 at 3. But Allen acknowledges that HSRs are not binding medical determinations but are temporary, and subject to change by a qualified medical provider.

4 Dkt. 47 at 9. A decision to modify a HSR may be based on observations—including those made by custody officers—and supporting evidence, with the final decision made by healthcare practitioners. Meyers Decl., Dkt. 46, Ex. D at 78, 81.

7 Allen asserts that Kaehler observed him walking in his cell; that a qualified medical provider, Meyers, modified his HSR; and that Kaehler removed the wheelchair in accordance with it. This is not sufficient to show an ADA violation. Allen’s speculation as to why Meyers made the change is not evidence of what Meyers and Kaehler discussed or why. Moreover, even if Meyers changed Allen’s HSR based only on Kaehler’s observations, inadequate medical care, by itself, does not constitute actionable disability discrimination under the ADA. Simmons, 609 F.3d at 1022 (“The ADA prohibits discrimination because of disability, not inadequate treatment for disability.”); see Bryant, 84 F.3d at 249 (“[T]he Act would not be violated by a prison's simply failing to attend to the medical needs of its disabled prisoners.).

17 In addition, the HSR issued in June 2021—which approved his full request for accommodations—was not written by his “treating health provider,” but rather the DOC medical director, Dr. Curl. See Curl Deposition, Dkt. 48, Ex. B 46 (“I was not his treating physician. . . . I was not evaluating him as a psychiatrist, and I was not labeling anything as permanent or temporary.”). Dr. Curl declared that she “intervene[d]” in Allen’s request for accommodations after she was asked by both Allen and his advanced care practitioner to resolve whether Allen should receive “an exception” to IMU’s “very restrictive” policy of not allowing medical equipment inside his cell. Id. at 38. Dr. Curl explained that she met with Allen “to help him feel less distressed and . . . come to reasonable kind of resolution to his distress.” Id. at 46. Dr. Curl never declared that the advanced care practitioner provided Allen with unreasonable or medically inappropriate care nor that this was anything more than a disagreement over accommodations. Id. 7 Furthermore, Allen fails to identify facts that show DOC acted with deliberate indifference when modifying his HSR, as required to recover damages under the ADA.

9 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). A prison official acts with “‘deliberate indifference . . . only if the [prison official] knows of and disregards an excessive risk to inmate health and safety.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002)). A showing of medical malpractice or negligence is insufficient to establish deliberate indifference. Id. Likewise, a mere difference of opinion between an inmate and medical providers regarding the appropriate course of treatment does not meet this standard. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

17 Allen asserts that the Kaehler acted with deliberate indifference when he returned to Allen’s cell with the modified HSR and removed his wheelchair with a “triumphant look and “swagger.” Dkt. 47 at 10. He contends that Kaehler deprived him of the “right to use his wheelchair before getting a medical opinion.” Id. 21 However, Kaehler did not modify his HSR; Meyers did. Even viewed in the light most favorable to Allen, the evidence demonstrates only that Kaehler removed the wheelchair in compliance with the HSR. Moreover, even if were true that Meyers changed Allen’s HSR solely based on Kaehler’s observations, this is not enough to prove an ADA violation. See Toguchi, 391 F.3d at 1060. Notably, there is no evidence or even argument that Kaehler removed Allen’s wheelchair to retaliate against him, to purposefully inflict harm, or to discriminate against him for his disabilities.

6 In response to DOC’s summary judgment motion, Allen alleges, for the first time, that DOC also violated the ADA when it denied him wheelchair access to attend a classification appointment. Dkt. 47 at 1, 9. Specifically, he asserts that while housed in IMU, DOC refused to let him remain unrestrained during transport to his appointment and denied him a wheelchair assistant. Id. at 9. He contends that these decisions effectively denied him the use of his wheelchair and resulted him missing the appointment. Id. 13 A party cannot assert unpled theories and claims for the first time in response to a motion for summary judgment. Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968- 69 (9th Cir. 2006). Federal Rule of Civil Procedure 8(a)(2) requires “that the allegations in the complaint ‘give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.’” Id. at 968 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 18 506, 512 (2002)). A response to a summary judgment motion is not a second chance to fix inadequate pleadings. Cf. Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006).

21 Allen did not allege these facts or assert an ADA claim based on them in his amended complaint.

1 Even if the Court considered it, Allen’s new claim is insufficient as a matter of law. Allen has not alleged or provided evidence that DOC denied him a wheelchair on that day; he alleges that Sgt. Kaehler did, for reasons or personal animus. Allen concedes that IMU procedures required him to be restrained while being transported. Medical accommodations in the IMU are “very restrictive.” Curl Deposition, Dkt. 48, Ex. B at 38.

6 Unlike his June 2021 HSR, which expressly allowed wheelchair access even while housed in the IMU, his HSR at the time of the incident did not include that language.

8 Allen has cited no authority for the proposition that DOC violated the ADA by adhering to the rules and procedures regarding the transport of IMU prisoners, instead of making an exception for him. See Curl Deposition, Dkt. 48, Ex. B at 46. Nor does Allen provide any evidence about the location, timing, or frequency of classification appointments. His conclusory allegations that his rights were denied are not sufficient. Allen must identify specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256; see Fed. R. Civ. P. 56(c) (The opposing party must set out specific facts showing a genuine issue for trial and cannot rely merely on allegations or denials contained in the pleadings).

17 Even viewed in the light most favorable to Allen, the evidence does not support his claim that DOC violated the ADA by limiting Allen’s wheelchair accommodation to only long distances. DOC’s motion for summary judgment on Allen’s ADA wheelchair claim is GRANTED, and Allen’s claim is DISMISSED with prejudice.

1 C. Allen’s § 1983 Eighth Amendment claim against Kaehler 2 To prevail on a § 1983 claim, a plaintiff must prove that they suffered: (1) a violation of rights protected by the Constitution or created by federal statute, (2) that was proximately caused (3) by conduct of a person (4) acting under color of state law.

5 Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Allen asserts that Kaehler violated the Eighth Amendment when he deprived him of his wheelchair. Dkt. 47.

7 To succeed on an Eighth Amendment claim based on prison medical treatment, “an inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires the plaintiff to first show “a serious medical need” and second, that “the defendant’s response to the need was deliberately indifferent.” Id. (internal quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). If a defendant has not violated a plaintiff’s constitutional rights, no claim exists under § 1983.

15 The first flaw in Allen’s § 1983 claim against Kaehler is that Kaeler was not Allen’s prison medical provider. There is no evidence and no claim that Kaehler had authority to alter Allen’s HSR. Even if he was, Allen has provided no evidence that Kaehler acted with the deliberate indifference required to violate the Eighth Amendment.

19 The facts of this case are similar to those in Hunt v. Pierson, 730 Fed. Appx. 210 (5th Cir. 2018).

21 In Hunt, an inmate sued a medical service provider under § 1983, arguing that she violated his Eighth Amendment rights by ordering the removal of his cane after “observing him for mere seconds while he draped his cane on his wrist.” Id. at 213. The inmate contended that provider’s decision to remove his cane “without assessing his physical condition or reviewing his medical records” constituted deliberate indifference.

4 Id. The Fifth Circuit affirmed the district court’s dismissal on summary judgment, holding that Hunt’s “disagreement over the type of medical care he received” is not sufficient to prove a § 1983 claim. Id. at 214. The court reasoned that although the provider’s acts could be considered “medical malpractice or negligence,” such an act “did not constitute deliberate indifference.” Id. 9 Like in Hunt, Allen claims that Kaehler acted with deliberate indifference by denying him his medical equipment based on only observations. However, Kaehler did not make the ultimate decision to remove his equipment—Meyers did. Even if Kaehler informed or even influenced Meyers’s decision, he had no authority to remove the wheelchair on his own, nor did he claim to do so. Allen does not show that Meyers conduct was intentionally discriminatory or anything more than more than a disagreement over medical care. See Toguchi, 391 F.3d at 1060 (Medical malpractice or negligence is insufficient to establish deliberate indifference.). The circumstances surrounding Kaehler’s decision to follow the amended HSR and remove Allen’s wheelchair does not by itself, meet the “high legal standard” required to establish deliberate indifference under the Eighth Amendment. Id. The Court concludes that Allen has no evidence to state a claim under § 1983.

21 Furthermore, and in any event, even if Kaehler acted with deliberate indifference to Allen’s medical needs, he is entitled to qualified immunity. Under qualified immunity, a public official is protected from suit when he or she “makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The Supreme Court has endorsed a two-part test to resolve claims of qualified immunity: a court must decide (1) whether the facts that a plaintiff has alleged “make out a violation of a constitutional right,” and (2) whether the “right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson v. Callahan, 553 U.S. 223, 232 (2009).

8 To be clearly established, “a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Taylor v. Barkes, 575 U.S. 822, 825 (2015) (per curiam). “[A] court must define the right at issue with ‘specificity’ and ‘not . . . at a high level of generality.’” Gordon v. Cnty. of Orange, 6 F.4th 961, 968 (9th Cir. 2021) (quoting City of Escondido v. Emmons, 586 U.S. 38, 42 (2019) (per curiam)). “A constitutional right is clearly established if every reasonable official would have understood that what he is doing violates that right at the time of his conduct.” Sampson v. Cnty. of Los Angeles, 974 F.3d 1012, 1018–19 (9th Cir. 2020) (citation and internal quotation marks omitted).

17 Here, Allen has not met his burden to show that complying with an inmate’s HSR, as modified, violates a clearly established constitutional right. Because Allen cites no supporting case law creating a clearly established right, Kaehler is entitled to qualified immunity.

21 Even viewed in the light most favorable to Allen, the evidence does not support Allen’s § 1983 claim against Kaehler. Allen has not established that any violation was clearly established. Kaehler’s motion for summary judgment on Allen’s § 1983 claim against him is GRANTED and that claim DISMISSED with prejudice.

3 The parties’ pending motions, Dkts. 51 and 52, are DENIED as moot.

4 IT IS SO ORDERED.

5 Dated this 7th day of November, 2025.

A BENJAMIN H. SETTLE U nited States District Judge