                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 05 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LEON THOMAS,                                     No.   15-55313

              Plaintiff-Appellee,                D.C. No.
                                                 2:10-cv-02671-JGB-CW
 v.

FRANCISCO QUINTANA; and                          MEMORANDUM*
BRADLEY JURGENSEN,

              Defendants-Appellants.


                    Appeal from the United States District Court
                        for the Central District of California
                     Jesus G. Bernal, District Judge, Presiding

                    Argued and Submitted November 10, 2016
                              Pasadena, California

Before: BERZON and NGUYEN, Circuit Judges, and ZOUHARY,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
      In this Bivens1 action brought by federal prisoner Leon Thomas, Defendants

Francisco Quintana and Bradley Jurgensen appeal the district court’s denial of their

motion for summary judgment based on qualified immunity. As to Jurgensen, we

affirm in part and reverse in part the district court’s decision. As to Quintana, we

reverse the district court’s decision.

      Government officials are entitled to qualified immunity unless (1) the facts

taken most favorably to the party alleging injury show that the official violated a

constitutional right, and (2) that constitutional right was clearly established at the

time of the alleged injury such that a reasonable official would understand his

actions violated the law. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing

Saucier v. Katz, 533 U.S. 194 (2001)).

      1. The evidence viewed in the light most favorable to Thomas supports a

finding that Jurgensen violated Thomas’ clearly established constitutional right to

be free from “deliberate indifference to serious medical needs” while incarcerated,

by denying Thomas adequate cell accommodations. See Jackson v. McIntosh, 90

F.3d 330, 332 (9th Cir. 1996) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

Prison officials must provide accommodations to prisoners with disabilities so that

      1
             See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).


                                            2
they can attend to their basic needs, including showering and using the toilet,

without risking injury. Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir. 1998); see

also LaFaut v. Smith, 834 F.2d 389, 394 (4th Cir. 1987).

      Thomas has presented evidence that the accommodations in Cell 137 created

an objective risk of “significant injury or the unnecessary and wanton infliction of

pain.” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (en banc) (quoting

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). Cell 137 lacked rails outside

the shower and a lifting device, such as a trapeze or grab-bar, above the bed. Until

April 2010, the cell also lacked rails around the toilet, and until June 2010 the

lower shower button was broken.2 Without these cell accommodations Thomas

could not safely shower, use the toilet, and move to, from, and within, the bed. As

a result, Thomas fell several times, injuring his back and leg. For Thomas, an

      2
              At this stage of the proceedings, we accept as true Thomas’ statements
that there were no rails around the toilet and that the shower button was broken.
See Carrillo v. Cty. of Los Angeles, 798 F.3d 1210, 1218 (9th Cir. 2015).
Defendants’ argument that only Thomas’ “self-serving” testimony supports these
facts misunderstands the applicable standard. At the summary judgment stage, a
court may not “disregard a piece of evidence . . . solely based on its self-serving
nature.” Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015).
“[D]eclarations are often self-serving, and this is properly so because the party
submitting it would use the declaration to support his or her position.” Id.
Thomas’ statements regarding the toilet rails and shower button are based on his
personal knowledge, and are internally consistent, so there is no reason to discredit
them at this stage of the proceedings. See id.


                                           3
amputee weighing over 300 pounds, a fall from the toilet, or while transferring to

and from the shower or bed, could result in significant injury and pain.

      Jurgensen acted with “deliberate indifference” because he “kn[ew] of and

disregard[ed] an excessive risk to [Thomas’] health.” Farmer v. Brennan, 511 U.S.

825, 837 (1994). Jurgensen had notice of the inadequacy of the accommodations

in Cell 137 as they related to Thomas’ disability. Thomas presented evidence that

he complained to Jurgensen about these issues more than fifteen times while

Jurgensen made his rounds of the institution where Thomas was housed.

According to Thomas, Jurgensen observed the absence of rails around the toilet

and outside the shower in Cell 137, but neglected to remedy the situation. Thomas

requested that Jurgensen see to it that a lifting device was installed, but Jurgensen

declined to provide that accommodation.3 Thomas also presented evidence that he

informed Jurgensen that he had fallen and injured himself several times because of

the lack of rails around the toilet and outside the shower. The record thus supports




      3
              Jurgensen indicates that the Assistant Health Services Administrator,
Louis Sterling, advised him Thomas should not be allowed a trapeze in his cell and
that such a device was not medically necessary. However, Sterling is not a medical
practitioner, and, moreover, Jurgensen did not provide an alternative lifting device
to remedy the underlying problem: Thomas’ inability to safely lift himself in and
out of, and move within, his bed.


                                           4
a finding that Jurgensen was deliberately indifferent to an excessive risk to

Thomas’ health.

      In contrast, the record does not show that Quintana was made aware of the

specific deficiencies of Thomas’ cell. Thomas avers that he spoke to Quintana

three times about his dissatisfaction with his cell and his desire for greater

disability accommodations, but the record does not describe what, if any, details

Thomas told Quintana. Nor does the record suggest that Quintana knew Thomas

had fallen because of the inadequate accommodations. Although Thomas

submitted administrative remedy requests to Quintana while he was housed in Cell

137, those requests did not raise the specific defects in the cell itself. In the only

remedy request from the relevant time period to which Quintana himself

responded, Thomas requested that his back brace and wheelchair cushion be

returned, and that he be transferred to a care level three institution.4 Thomas’ other

administrative remedy requests likewise did not put Quintana on notice about the

absence of adequate rails and a lifting device, or the broken shower button: the




      4
               Thomas attached a handwritten complaint letter addressed to Quintana
and dated February 24, 2010 to his Lodged Complaint. But there is no allegation
that the letter was sent or received, nor was the letter attached to the complaint as
filed.


                                            5
other requests either did not mention those deficiencies, or were addressed to, and

handled by, other prison officials.

      2. With respect to the medical equipment, we find that neither Quintana nor

Jurgensen violated clearly established law by showing “deliberate indifference to

[Thomas’] serious medical needs.” See Jackson, 90 F.3d at 332 (citing Estelle, 429

U.S. at 104). Thomas maintains that both the back brace and the wheelchair

cushion were necessary to manage his pain and other symptoms. But two different

prison medical officers determined that a back brace was not medically necessary.

Moreover, medical evaluations revealed no ulcers, lesions, or other skin sores after

Thomas was provided an extra-wide wheelchair. The evidence in the record does

not, therefore, indicate that the denial of the medical equipment caused an

“excessive risk to [Thomas’] health.” Farmer, 511 U.S. at 837. Accordingly, we

reverse the district court’s denial of qualified immunity with respect to Thomas’

allegations related to the denial of a back brace and wheelchair cushion.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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