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.
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
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.
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.
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 ...