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Johnson v. Cox

August 4, 2008

BYRON EUGENE JOHNSON, PLAINTIFF,
v.
R. COX, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

AMENDED FINDINGS AND RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion for summary judgment or, in the alternative, summary adjudication (Doc. 28). Plaintiff has filed an opposition to the motion (Doc. 31).

I. BACKGROUND

A. Plaintiff's Allegations

This case proceeds on plaintiff's amended complaint (Doc. 10), filed March 20, 2007. In his amended complaint, plaintiff alleges that he has been denied proper medical care in violation of his Eighth Amendment rights. Plaintiff claims that following surgery, where he had a full knee arthoplasty, he experienced pain in his left leg, not limited to the knee, but affecting the entire leg. Plaintiff claims that he continuously complained about this pain to Dr. James, but he did not receive adequate care and that his physical therapy sessions had been discontinued. Plaintiff states that Dr. James prescribed him Naproxyn, which was ineffective in relieving his pain. He also claims that in 2005, Dr. James referred him to a specialist, but as of January 2008, he had not yet been seen by the specialist, and in fact the referral to the specialist was ultimately denied. Plaintiff's complaint indicates that Drs. Roche and Cox were aware of the alleged denial of proper health care, failed to prevent it, and in fact were directly involved in the delay of plaintiff seeing the specialist he was referred to in deliberate indifference to his serious medical needs.

B. Undisputed Facts

Plaintiff had knee surgery in August 2003. He also has a history of hypertension, which has been followed regularly by medical staff for several years. Plaintiff first saw defendant James in April 2004 at the chronic care clinic at High Desert State Prison (HDSP). Plaintiff was seen by Dr. James several times over the following three years for a variety of complaints. Plaintiff complained on a number of occasions of pain in his left knee and/or leg as well as his back. During this time period, Dr. James prescribed plaintiff Naproxyn for his pain and gave plaintiff some exercises to do.

On June 15, 2005, plaintiff submitted an inmate appeal form 602, complaining about the lack of treatment for the pain in his leg. On July 18, 2005, Dr. James referred plaintiff for an orthopedic consult. This referral was forwarded to the Specialty Clinic for scheduling and plaintiff's name was to be added to the list in chronological order. Plaintiff's appeal of his 602 was reviewed by defendant Cox at the first level. Dr Cox was the acting Chief Physician and Surgeon at HDSP at the time of plaintiff's 602 appeal. Dr. Cox granted plaintiff's appeal. Plaintiff had requested that he be re-examined and prescribed suitable treatment, which Dr. Cox indicates happened, including his referral for an orthopedic evaluation. Plaintiff then appealed Dr. Cox's decision to the second level, where defendant Roche partially granted the appeal.

Dr. Roche is the Chief Medical Officer (CMO) at HDSP. As CMO, Dr. Roche states that his duties include facilitating the transfers of patients to outside medical facilities when needed. Dr. Roche partially granted plaintiff's 602 appeal on September 6, 2005 at the second level. He states plaintiff was re-examined and referred to see an orthopedist and continued to receive Naproxyn to assist with his pain. Plaintiff's appeal was denied at the director's level, on December 19, 2005, and it was again indicated that plaintiff had been placed on the list for specialty clinic evaluation. However, there is no indication in the evidence that plaintiff has ever actually been seen by the specialist.*fn1

II. STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate when it is demonstrated that there exists "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(c). Under summary judgment practice, 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," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine ...


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