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United States District Court

Eastern District of California 

Paul Loutzenhiser,

Plaintiff, No. Civ. S 04-1937 LKK PAN P

vs. Findings and Recommendations

Alvaro C. Traquina, et al.,

Defendants.

-oOoPlaintiff is a state prisoner prosecuting a civil rights

action. The case proceeds on the September 16, 2004, complaint. 

The court herein addresses plaintiff’s February 1, 2005, motion

for summary judgment; the May 23, 2005, cross-motion for summary

judgment of defendants Traquina, Webster and Cervantes; and

defendant Franklin’s December 20, 2004, motion to dismiss and May

25, 2005, cross-motion for summary judgment. 

The pleading claims defendants violated plaintiff’s right to

adequate medical care under the Eighth Amendment, discriminated

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against him based on his disability under the Americans with

Disabilities Act (ADA), and violated his right to due process

under the Fourteenth Amendment. Plaintiff seeks damages and

injunctive relief. 

Standard on Summary Judgment

A party may move, with or without supporting affidavits, for

a summary judgment and the judgment sought shall be rendered

forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law. Fed. R. Civ. P. 56(a)-(c). 

An issue is “genuine” if the evidence is such that a

reasonable jury could return a verdict for the opposing party. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A fact is

“material” if it affects the right to recover under applicable

substantive law. Id. The moving party must submit evidence that

establishes 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 Corporation v. Catrett, 477 U.S. 317, 322 (1986). 

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’” that the moving party believes

demonstrate the absence of a genuine issue of material fact. 

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Id., at 323. If the movant does not bear the burden of proof on

an issue, the movant need only point to the absence of evidence

to support the opponent’s burden. To avoid summary judgment on

an issue upon which the opponent bears the burden of proof, the

opponent must “go beyond the pleadings and by her own affidavits,

or by the “‘depositions, answers to interrogatories, and

admissions on file,’ designate ‘specific facts showing that there

is a genuine issue for trial.’” Id., at 324. The opponent’s

affirmative evidence must be sufficiently probative that a jury

reasonably could decide the issue in favor of the opponent. 

Matsushita Electric Industrial Co., Inc. v. Zenith Radio

Corporation, 475 U.S. 574, 588 (1986). When the conduct alleged

is implausible, stronger evidence than otherwise required must be

presented to defeat summary judgment. Id., at 587.

Fed. R. Civ. P. 56(e) provides that “supporting and opposing

affidavits shall be made on personal knowledge, shall set forth

such facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify to the

matters stated therein.” Nevertheless, the Supreme Court has

held that the opponent need not produce evidence in a form that

would be admissible at trial in order to avoid summary judgment. 

Celotex, 477 U.S. at 324. Rather, the questions are (1) whether

the evidence could be submitted in admissible form and (2) “if

reduced to admissible evidence” would it be sufficient to carry

the party’s burden at trial. Id., at 327. Thus, in Fraser v.

Goodale, 342 F.3d 1032 (9th Cir. 2003), objection to the opposing

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party’s reliance upon her diary upon the ground it was hearsay

was overruled because the party could testify to all the relevant

portions from personal knowledge or read it into evidence as

recorded recollection.

A verified complaint based on personal knowledge setting

forth specific facts admissible in evidence is treated as an

affidavit. Schroeder v. McDonald, 55 F.3d 454 (9th Cir. 1995);

McElyea v. Babbitt, 833 F.2d 196 (9th Cir. 1987). A verified

motion based on personal knowledge in opposition to a summary

judgment motion setting forth facts that would be admissible in

evidence also functions as an affidavit. Johnson v. Meltzer, 134

F.,3d 1393 (9th Cir. 1998); Jones v. Blanas, 393 F.3d 918 (9th

Cir. 2004). Defects in opposing affidavits may be waived if no

motion to strike or other objection is made. Scharf v. United

States Attorney General, 597 F.2d 1240 (9th Cir. 1979).

Undisputed Facts

The following facts are undisputed. 

In the early 1970's plaintiff injured his right leg, causing

it to be one inch shorter than the left.

Plaintiff arrived at Solano April 30, 2002. 

July 29, 2002, Dr. Traquina examined plaintiff and

prescribed “state crepe-soled 11EEE” boots.

Plaintiff notified the medical department January 22, 2003,

he had not received his boots back after sending them off for

installation of crepe soles. Traquina contacted Medical

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Technical Assistant Rowden about the missing boots, who advised

to wait another month. 

Plaintiff pursued grievance # CSP-S-03-00870 commencing

January 31, 2003, complaining he had not yet received the crepesoled boots and seeking permission to wear tennis shoes to access

privilege areas – viz., the law library, visiting area, medical

clinic – in the interim. Defendants Webster, a Medical Technical

Assistant, and Cervantes, Appeals Coordinator, processed the

grievance. The grievance was granted in part in April 2003 and

the crepe-soled boots were re-ordered in May 2003. 

Plaintiff had not received the crepe-soled boots as of March

25, 2004, and requested an interview. Plaintiff told Webster two

years was long enough to wait and plaintiff’s back hurt

constantly and severely. Webster said he would find the boots

and get back to plaintiff, but he did not.

April 22, 2004, plaintiff submitted grievance # CSP-S-03-

00870 for second-level review, explaining the grievance was

granted the prior year at the first level but he still had not

received crepe-soled boots. Plaintiff explained his physical

condition was worsening daily. April 26, 2004, Cervantes

rejected plaintiff’s appeal as untimely pursuant to California

Code of Regulations 3084.3(c)(6). May 4, 2004, Appeals

Coordinator Gardner instructed plaintiff to start a new grievance

against clothing distribution. 

Plaintiff sought director’s level review of grievance # CSPS-03-00870, explaining his need for special shoes or a lift and

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recounting his efforts to obtain them. Plaintiff explained he

had relinquished his only pair of state-issued boots for

alteration and could not access privilege areas without a “softshoe chrono” permitting him to wear tennis shoes. Plaintiff

claimed defendants were violating the Americans with Disabilities

Act and the lack of proper foot ware was causing damage to his

frame. 

Plaintiff’s grievance was returned with a June 27, 2004,

director’s level response, directing plaintiff to submit the

grievance to the appeals coordinator for completion through the

second level. 

 Plaintiff filed a new grievance August 2, 2004, claiming

that after “2 years of battling” he still had not received his

prescribed modified boots and the delay was causing his condition

to worsen and causing severe back pain. For relief, plaintiff

requested his prescription for crepe-soled boots be filled, his

prescription for Nerontin for pain be increased, and damage from

the delay in providing boots be assessed. Cervantes returned the

second grievance August 5, 2004, unfiled, indicating it was

duplicative of # CSP-S-03-00870 and advising plaintiff to submit

Form CDC 7362 to medical staff regarding crepe-soled shoes. 

August 4, 2004, Dr. Franklin examined plaintiff for

complaints of back pain. Franklin prescribed muscle relaxants

and Motrin and assessed that plaintiff’s back pain was caused by

scoliosis and uneven leg length. Franklin prescribed exercises

for back pain. 

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Plaintiff signed his complaint in this action August 19,

2004, and filed it September 16, 2004. 

November 9, 2004, plaintiff was called in to meet with Dr.

Solomon and the Medical Legal Coordinator to talk about his

“medical appeal.” Dr. Solomon November 9, 2004, determined

plaintiff required an orthotic device due to his shortened right

leg. Solomon referred plaintiff to the orthotic clinic, ordered

crepe-soled shoes, and provided plaintiff a soft-shoe “chrono.” 

Orthotics Specialist Plecker examined plaintiff December 22,

2004, measuring him for a “lift” for his right shoe. 

January 20, 2005, Dr. Solomon examined plaintiff and

prescribed pain medication and a cane.

During March and April of 2005, plaintiff’s received pain

medication and “chronos” for a low bunk, sick leave and a cane. 

Plaintiff’s new shoes and orthotic device arrived and were

provided to him. Plaintiff received a Disability Program

Placement Verification April 5, 2005, which found he was mobility

impaired in the “DNM” category and suffered from a permanent

disability not impacting placement. 

Disputed Facts

What transpired during Franklin’s August 3, 2004,

examination of plaintiff is disputed. Franklin declares

plaintiff did not appear to be in acute distress; plaintiff

stated he primarily was interested in obtaining renewal of his

pain medication, Neurontin; Franklin knew plaintiff had leglength difference but plaintiff “never told him about a delay in

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receiving previously-ordered altered state boots, nor did he ask

[Franklin] to issue a chrono for altered state boots”; Franklin

would have been able to do nothing about the delay had he known

of it; and Franklin did not promise to order an x-ray for

plaintiff. Franklin’s declaration is silent about whether

plaintiff’s medical file included documents related to his

grievances, and if so whether Franklin read them.

Plaintiff declares he told Franklin of the delay in

obtaining altered boots, he had been without pain medication for

approximately six weeks, and his back hurt so badly he could

hardly walk to the appointment. Plaintiff declares he asked

Franklin to reorder plaintiff’s appliance and Franklin said the

facility no longer had a doctor to treat plaintiff’s disability. 

Plaintiff declares Franklin told plaintiff his curvature of the

spine was caused by his disability, and that Franklin would order

x-rays to see how bad the curvature was getting. Plaintiff

declares he wrote requests to see a doctor August 8, 2004, and

several more times, with no result as of September 9, 2004. 

Analysis

Summary judgment is not appropriate for any party on

plaintiff’s Eighth Amendment claims.

“The unnecessary and wanton infliction of pain upon

incarcerated individuals under color of law constitutes a

violation of the Eighth Amendment . . .” McGuckin v. Smith, 974

F.2d 1050, 1059 (9th Cir. 1991). A violation of the Eighth

Amendment occurs when prison officials deliberately are

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indifferent to a prisoner’s medical needs. Id. The threshold

for a medical claim under the Eighth Amendment is extremely high:

A prison official acts with “deliberate indifference .

. . only if [he] knows of and disregards an excessive

risk to inmate health and safety.” Gibson v. County of

Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002)

(citation and internal quotation marks omitted). Under

this standard, the prison official must not only “be

aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists,” but

that person “must also draw the inference.” Farmer v.

Brennan, 511 U.S. 825, 837 (1994). “If a [prison

official] should have been aware of the risk, but was

not, then the [official] has not violated the Eighth

Amendment, no matter how severe the risk.” Gibson, 290

F.3d at 1188 (citation omitted). This “subjective

approach” focuses only “on what a defendant’s mental

attitude actually was.” Farmer, 511 U.S. at 839. 

“Mere negligence in diagnosing or treating a medical

condition, without more, does not violate a prisoner’s

Eighth Amendment rights. McGuckin, 974 F.2d at 1059

(alteration and citation omitted).

Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (footnote

omitted). 

A "serious" medical need exists if the failure to treat a

prisoner's condition could result in further significant injury

or the "unnecessary and wanton infliction of pain." Id. (citing

Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A prisoner has a

"serious" need for medical treatment if she has an injury that a

reasonable doctor or patient would find important and worthy of

comment or treatment, a medical condition that significantly

affects her daily activities, or chronic and substantial pain.

Id. at 1059-60, citing Wood v. Housewright, 900 F.2d 1332, 1337-

41 (9th Cir.1990). 

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Delay in medical treatment amounts to deliberate

indifference if (1) it seriously affected the plaintiff’s medical

condition and (2) defendants were aware the delay would cause

serious harm. Shapley v. Nevada Board of State Prison

Commissioners, 766 F.2d 404, 408 (9th Cir. 1985). 

It is not disputed that as a result of an old accident,

plaintiff had one leg longer than the other, which required

special shoes to avoid pain.

Plaintiff has submitted the relevant prison instructions to

inmates to obtain medical appliances dated March 27, 2001. See

Ex. M to plaintiff’s motion for summary judgment. The document

appears on its face to be authentic and defendants have not

objected to it. The procedure required prisoners first have a

“medical chrono” that justifies a medical appliance, then obtain

a prescription from a clinic physician, deliver the prescription

to the clothing distribution room, pay $10 for a new pair of

prison boots, take the prescription and new boots to the Medical

material and Stores Supervisor who orders crepe-soled shoes from

the California Medical Facility and, when they are returned,

“ducats” the prisoner to receive them.

In October 2002, a warehouse manager sent a memorandum to a

procurement officer complaining the medical department was

issuing too many prescriptions for crepe-soled shoes and not

following the March 2001 protocol. The memorandum implies but

does not explicitly say that clinic physicians were issuing

prescriptions without the required “medical chrono” on form CDC

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128-C. In June 2003, the warden modified the protocol by

requiring the chief medical officer (Traquina) endorse his final

approval upon any prescription for crepe-soled shoes. 

In light of these procedures the Medical Department and its

staff had substantial responsibility to ensure prisoners received

orthopedic foot ware as medically necessary. It is undisputed

such foot ware – viz., crepe-soled boots plus an insert or “lift”

in the right boot – was medically necessary for plaintiff. The

record suggests, but does not establish, that Drs. Traquina and

Franklin knowingly shirked their responsibilities to plaintiff

and abandoned their patient to the whims of the prison

bureaucracy. The original physician’s order for crepe-soled

boots was lost while being filled. Subsequent orders made in

granting plaintiff’s grievance likely failed to meet procedural

requirements; in any event the boots did not appear. Nothing in

plaintiff’s medical record before November 2004 indicates a

“lift” or insert had been prescribed or ordered for plaintiff’s

right boot if the boot ever materialized. 

Currently it is impossible to place responsibility for

failing to provide plaintiff’s shoes and lift for 2-3 years. To

establish liability plaintiff must show someone with authority to

address his need was deliberately indifferent to it. The

defendants have been no help to the court whatever in this

regard. Plaintiff has furnished some documents that shed some

light on the relevant question but they are written in a patois –

viz., “ducats,” “chronos,” etc. - indiscernible to the court yet

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critical for the necessary understanding. Fault may lie with

none of the named defendants, but rather with the officials who

established a protocol for obtaining medical prosthetic devices

that are incomprehensible and virtually impossible for prisoners

to implement and thus entirely indifferent to Eighth Amendment

rights of prisoners in need of medical care for serious medical

needs. On the present record, the court can neither place that

responsibility nor recognize that any of the named defendants do

not share it in a way that may expose him to liability. Nor can

the court presently determine whether any defendant is entitled

to qualified immunity. The Attorney General has furnished briefs

less helpful than the pro se plaintiff’s. 

The court will recommend denying summary judgment for any

party on plaintiff’s Eighth Amendment claims. Plaintiff will be

permitted an opportunity to discover who is responsible for

imposing the instructions and protocols he has provided and move

to amend his complaint to name that person as defendant. 

Plaintiff may seek leave to add the warden as a defendant and

move for a preliminary injunction requiring necessary medical

devices be provided to him forthwith. 

Plaintiff seeks summary judgment on his ADA claims and

defendants do not oppose. To prevail under Title II of the

Americans with Disabilities Act (ADA), plaintiff must establish:

(1) he is a qualified individual with a disability; (2) he was

excluded from participation in or otherwise discriminated against

with regard to a public entity’s specified services, programs, or

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activities, and (3) such exclusion or discrimination was because

of his disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th

Cir. 2002). If plaintiff seeks compensatory damages, he must

allege defendants knew that harm was substantially likely and

nevertheless failed to act to prevent it. See Duvall v. County

of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001). The

undeveloped factual record precludes summary judgment for

plaintiff on his ADA claims. 

Defendants seek summary judgment on plaintiff’s due process

claim on the ground it is unexhausted, and plaintiff does not

oppose. The record reflects the claim is unexhausted. 

Standard on Motion to Dismiss

On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6),

the court must accept plaintiff’s allegations as true, read the

complaint most favorably to plaintiff, give plaintiff the benefit

of every reasonable inference that appears from the pleading and

argument of the case and dismiss the complaint only if it is

clear no relief could be granted under any set of facts that

could be proved consistent with the allegations. Wheeldin v.

Wheeler, 373 U.S. 647, 658 (1963); Retail Clerks International

Association, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746,

754 n.6 (1963); Hishon v. King & Spalding, 467 U.S. 69, 73

(1984). The court may consider documents attached to the

complaint in evaluating a motion to dismiss. Parks School of

Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

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Analysis

Franklin’s arguments the pleading fails to state a claim

should be rejected under the analysis set forth regarding summary

judgment.

Franklin’s arguments concerning exhaustion also should be

rejected. Title 42 of the United States Code § 1997e(a) provides

a prisoner may bring no § 1983 action until he has exhausted such

administrative remedies as are available. The requirement is

mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). The

administrative remedy must be exhausted before suit is brought

and a prisoner is not entitled to a stay of judicial proceedings

in order to exhaust. McKinney v. Carey, 311 F.3d 1198 (9th Cir.

2002). 

The California Department of Corrections’ administrative

grievance procedure is set forth in Title 15 of the California

Administrative Code at sections 3084.1, et seq. California

prisoners or parolees may appeal “any departmental decision,

action, condition, or policy which they can demonstrate as having

an adverse effect upon their welfare.” 15 CAC § 3084.1(a).

Ordinarily, a grievance must be taken to a second- and

third-level appeal before exhaustion is complete. Id. 

Here, however, plaintiff’s grievance was granted at the

first level and therefore he was not required to pursue it

further. Gomez v. Winslow, 177 F. Supp. 2d 977, 985 (N.D. Cal.

2001) (“Because [the plaintiff] had, in essence, ‘won’ his inmate

appeal, it would be unreasonable to expect him to appeal that

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victory before he is allowed to file suit.”); Clement v.

California Department of Corrections, 220 F. Supp. 2d 1098, 1106

(N.D. Cal. 2002) (exhaustion satisfied where relief was granted

at lower level of grievance system); Brady v. Attygala, 196 F.

Supp. 2d 1016-23 (C.D. Cal. 2002) (inmate prevailed on grievance

requesting to be seen by outside eye specialist and exhaustion

was met where plaintiff had obtained “all the relief he [could]

extract from the prison administrative process”). 

Franklin argues plaintiff file his grievance, which did not

name Franklin, before Franklin even examined plaintiff. All

claims arising from the ongoing course of treatment for

plaintiff’s single medical problem were within the scope of

plaintiff’s initial grievance. See Gomez v. Winslow, 177 F.

Supp. 2d 977; Brown v. Sikes, 212 F.3d 1205 (11th Cir. 2000);

Clement v. California Department of Corrections, 220 F. Supp. 2d

1098 (N.D. Cal. 2002); Torrence v. Pelkey, 164 F. Supp. 2d 264

(D. Conn. 2001). Plaintiff’s claims against Franklin are

exhausted.

Accordingly, the court hereby recommends that:

1. Defendant Franklin’s December 20, 2004, motion to

dismiss be denied;

2. Plaintiff’s February 1, 2005, motion for summary

judgment be denied; 

3. The May 23, 2005, cross-motion for summary judgment of

defendants Traquina, Webster and Cervantes be denied, except as

to plaintiff’s due process claims which should be dismissed

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without prejudice for failure to exhaust administrative remedies;

and

4. Defendant Franklin’s May 25, 2005, cross-motion for

summary judgment be denied. 

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be

filed within ten days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

recommendations in whole or in part.

Dated: August 22, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

/lout1937.f&r xmsj

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