FINDINGS & RECOMMENDATIONS
Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. This action is currently proceeding against defendants Cook, Grannis, Hodges-Wilkins and Stocker (defendants) for their allegedly having denied plaintiff surgery for a dislocated finger in violation of the Eighth Amendment. See Docket entries 8, 57 & 86; Opp'n at 4:1-7. Defendants' motion for summary judgment is before the court. Plaintiff has filed an opposition. Defendants have not replied.*fn1
I. Summary Judgment Standards
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. See 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, see 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, see 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 need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
On May 19, 2006, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
The Eighth Amendment's prohibition of cruel and unusual punishment extends to medical care of prison inmates. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). In order to state a section 1983 claim for violation of the Eighth Amendment based on inadequate medical care, a prison inmate must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id. at 106.
In his complaint, signed under the penalty of perjury, plaintiff alleges that on February 27, 2003, and while incarcerated at North Kern State Prison (NKSP), he reported to medical officials that he had a broken or dislocated finger. On March 5, 2003, plaintiff saw defendant Cook, a doctor, about the finger. Dr. Cook indicated that plaintiff could not have surgery on his finger while housed at NKSP, and then referred plaintiff to an orthopedic specialist. Second Am. Compl. ¶¶ 1A-1C. The briefing on summary judgment clarifies the chronology of Dr. Cook's interactions with plaintiff. It is undisputed that Cook saw plaintiff on January 17, 2003, shortly after he arrived at NKSP. At that time, Dr. Cook diagnosed chronic dislocation of the left third finger since November 2002, checked plaintiff's medications and requested an orthopedic consult with a specialist. On March 11, 2003, Dr. Cook saw plaintiff for the second and last time. She confirmed the diagnosis, asked a nurse to check on the status of the requested consult*fn2 and told plaintiff to follow up with his yard doctor if the consult had not happened within a month. Decl. of Page Cook, D.O. (Cook Decl.), ¶¶ 8-11, 13-16; Decl. of Kennard Lee Davis (Davis Decl.), ¶¶ 7-8, Ex. 2 & Ex. 3 at 8-10. While the parties dispute whether Dr. Cook saw plaintiff a third time, on March 5, 2003, for an interview related to a grievance, and also whether Dr. Cook ever told plaintiff he could not have surgery at NKSP, these disputes do not create a general issue of material fact for the purposes of the pending motion.
Defendants argue defendant Cook is entitled to summary judgment because plaintiff fails to point to any evidence indicating Cook was ever deliberately indifferent to plaintiff by failing to obtain surgery for his dislocated finger. On the record before it, the court agrees. Plaintiff does not dispute that Dr. Cook saw him and took steps to respond to his complaints. He fails to point to anything indicating it was within defendant Cook's power to order surgery for plaintiff or within Cook's power and ability to perform the surgery herself. Second, plaintiff fails to point to anything suggesting that the appropriate course of action for Cook, who saw plaintiff early on in plaintiff's efforts to obtain treatment for his finger once he arrived at NKSP, was something other than to refer plaintiff to an orthopedic specialist. ...