The opinion of the court was delivered by: John F. Walter United States District Judge
Plaintiff, a state prisoner proceeding pro se, filed this civil rights action on November 28, 2007, against the Director of the California Department of Rehabilitation and Corrections, the Warden at the California Men's Colony, and a prison dentist. On December 12, 2007, the Court issued an Order dismissing the Complaint with leave to amend. On January 8, 2008, Plaintiff filed an unverified First Amended Complaint against California Men's Colony dentist Dr. Murphy, sued in his individual capacity only.*fn1 Plaintiff alleges that Defendant Murphy provided Plaintiff inadequate dental care in violation of the Eighth Amendment, retaliated against Plaintiff for filing grievances, and subjected Plaintiff to race discrimination in violation of the Equal Protection Clause. Plaintiff appended to the First Amended Complaint a request for appointment of counsel.
On August 29, 2008, Defendant filed a Motion for Summary Judgment. Plaintiff filed an Opposition to the Motion on October 27, 2008. In the August 29, 2008 Motion for Summary Judgment, Defendant contended that the undisputed facts showed Defendant was entitled to judgment as a matter of law on all of Plaintiff's claims. However, Defendant's Motion addressed only Plaintiff's deliberate indifference and race discrimination claims, and did not address Plaintiff's retaliation claim. Therefore, on October 31, 2008, the Court issued an Order denying Defendant's Motion for Summary Judgment without prejudice and extending the deadline for filing a motion for summary judgment to thirty days from the date of the Order. By Minute Order dated November 19, 2008, the Court extended this deadline to December 17, 2008.
On December 17, 2008, Defendant filed another Motion for Summary Judgment. On December 18, 2008, the Court issued a Minute Order advising the Plaintiff of the requirements of Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1997) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). On December 24, 2008, Plaintiff filed an Opposition to the Motion. Also on December 24, 2008, Plaintiff filed a document entitled "Plaintiff, Moves for Summary Judgment," a document Plaintiff signed on December 19, 2008.
SUMMARY OF ALLEGATIONS OF FIRST AMENDED COMPLAINT
Plaintiff alleges that, on August 28, 2006, Defendant examined Plaintiff's teeth, took x-rays, and pulled four teeth (First Amended Complaint, p. 5). Plaintiff alleges Defendant should have known there would be problems (id.). Plaintiff alleges Defendant drilled a hole in Plaintiff's denture and destroyed it (id.). Plaintiff allegedly submitted two prison grievances, or "602's" (id.). Plaintiff alleges that the grievances and asserted intervention by the Prison Law Office and the Attorney General upset Defendant, causing Defendant to retaliate by refusing to see Plaintiff (id.). Plaintiff alleges that his gums are swollen and sore, and that he cannot chew solid food (id.).
Plaintiff alleges Defendant violated Plaintiff's Due Process and Eighth Amendment rights, and retaliated against Plaintiff in violation of the First Amendment (id.). Plaintiff also alleges that Defendant discriminated against Plaintiff on the basis of race in violation of Equal Protection (id., pp. 5, 6). Plaintiff seeks an order:
(1) requiring Plaintiff to be fitted with new dentures; and
(2) requiring Plaintiff to be permitted to have the services of a different dentist (id., p. 6). Plaintiff also seeks five million dollars in damages (id.).
Documents attached to the First Amended Complaint help to clarify Plaintiff's allegations. On October 9, 2006, Plaintiff wrote a grievance complaining that Defendant allegedly had pulled four teeth and told Plaintiff that Plaintiff would receive an upper plate in ninety days (First Amended Complaint, Ex. A). Plaintiff complained that his gums were sore and that he could eat only soup (id.). On January 22, 2007, Plaintiff wrote a grievance complaining that Defendant had provided Plaintiff with an upper denture that allegedly did not fit, and that Plaintiff had tried unsuccessfully to see Defendant four times (First Amended Complaint, Ex. B). Plaintiff alleged that Defendant was retaliating against Plaintiff for filing the earlier grievance (id.).*fn2
STANDARDS GOVERNING SUMMARY JUDGMENT
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the initial burden of offering proof of the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) ("Celotex"). Once the moving party's burden is met, the party opposing the motion is required to go beyond the pleadings and, by the party's own affidavits or by other evidence, "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2); Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 987 (9th Cir. 2006). The party opposing the motion must submit evidence sufficient to establish the elements that are essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322.
The Court must "view the facts in the light most favorable to the non-moving party and draw reasonable inferences in favor of that party." Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 784 (9th Cir. 2007). Where different ultimate inferences reasonably can be drawn, summary judgment is inappropriate. Miller v. Glenn Miller Productions, Inc., 454 F.3d at 988.
A factual dispute is "genuine" only if there is a sufficient evidentiary basis upon which a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" only if it ...