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FEWS v. PEREZ

September 6, 2005.

CALVIN B. FEWS, Plaintiff,
v.
Lieutenant PEREZ, Defendant.



The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

This is a civil rights case filed pro se by a state prisoner. Defendant has moved for summary judgment on the ground that there are no material facts in dispute and that he is entitled to judgment as a matter of law. Plaintiff has filed an opposition. He also has filed a motion for production of documents. The motions are submitted.

DISCUSSION

  A. Request for production

  Plaintiff has filed a request for production of documents, despite being warned in an earlier order that he should not file discovery requests with the court. The request for production will be stricken.*fn1 See Fed.R.Civ.P. 5(d) (discovery not to be filed with the court). B. Motion for summary judgment

  1. Standard of Review

  Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

  The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986); Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). When the moving party has met this burden of production, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. If the nonmoving party fails to produce enough evidence to show a genuine issue of material fact, the moving party wins. Id.

  It is not the task of the district court to scour the record in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying with reasonable particularity the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so, the district court may properly grant summary judgment in favor of the moving party. Id.

  2. Analysis

  Defendant contends that he is entitled to summary judgment because (1) there is no genuine issue of material fact that he was not deliberately indifferent to plaintiff's serious medical need; and (2) he is entitled to qualified immunity. a. Declarations

  Plaintiff has not supported his opposition with a declaration, nor has he verified it so the opposition itself could serve as a declaration. As a result, the only evidence in opposition to the motion is plaintiff's complaint, which is verified. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn. 10-11 (9th Cir. 1995) (verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence).

  The following is a summary of plaintiff's allegations in the complaint. On February 18, 2003, plaintiff complained to staff in his housing unit of a severe toothache. An officer called and obtained an emergency dental appointment for the next day, February 19, at 8:00 am. Plaintiff was given clove oil, a numbing agent, and high-dose Motrin, a pain reliever. At 3:00 am on the 19th plaintiff was informed he was being transferred to Corcoran State Prison. He informed staff that he could not travel because of his pain and that dental surgery was scheduled. He was told he would have to have a medical examination before he could be removed from the bus list. He was taken to the infirmary for the examination, where an MTA concluded he needed oral surgery. Defendant then appeared on the scene, told him that San Quentin was overcrowded, that he was not going to listen to any complaints, and that plaintiff would have to get on the bus. When plaintiff told defendant about the scheduled dental surgery, defendant said that he did not care and that plaintiff was getting on the bus. Defendant told him he would receive prompt medical attention at Corcoran. In fact, however, he did not receive dental care at Corcoran until March 5, 2003, although he continued to receive the high-dose Motrin until then. He asserts that he experienced "unbearable pain" until the surgery was performed. Compl. at 3 & unnumbered supplemental page.

  In his declaration, defendant Perez says that on February 19 he was watch commander. At that time there was a standing order from "the deputy warden" requiring that because of overcrowding, transfers could be postponed on medical grounds only if the medical condition was "life threatening." Defendant states that he did not have authority or discretion to make exceptions to the rules for inmate transfers, that his "professional responsibility" was to comply with ...


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