The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's putative motion for summary judgment, filed on 1/05/09, to which defendants filed their opposition on 1/27/09. The court construes the 2/19/09 "motion to add new evidence," and "grounds for entry of judgment," as plaintiff's reply.
This action, originally filed on 9/06/06, is proceeding on an amended complaint, filed on 12/01/06, as modified by Order, filed on 7/02/07, dismissing Grannis as a defendant. Defendants are Medical Technical Assistant (MTA) Olver (erroneously sued as "Oliver"), Dr. Lee; Dr. Sahota; Kim Stocker. The gravamen of plaintiff's action is that defendants violated plaintiff's rights under the Eighth Amendment by deliberate indifference to a serious medical condition. Defendant Olver was deliberately indifferent when plaintiff suffered severe leg pain and was unable to walk normally, refusing plaintiff treatment for three days, stating that "'it is not a medical emergency," and only providing Ibuprofen which did not stop his pain. Amended Complaint, pp. 3, 19.
Plaintiff walked in pain for fourteen (14) days before receiving, in addition to Ibuprofen, Vicodin, "which never worked"; thus, defendant Lee, who saw plaintiff on 12/30/05 and again on 1/09/06, provided inadequate pain medication and made no real effort to determine the source of the pain in his leg, which still hurt but not so severely. Amended Complaint, pp. 3, 19, 51.
Defendants Stocker and Sahota denied plaintiff's request for an M.R.I., which plaintiff sought so that the major cause of his pain could be diagnosed. He states, although it is less severe, that he is still in pain. Id., at 51. Plaintiff primarily seeks money damages, including punitive, but states he also seeks declaratory relief (although he apparently, but mistakenly, believes declaratory relief may come in the form of money damages (see id., at 3, 52)). In addition, he seeks injunctive relief, but apparently only in the form of prohibiting defendants and their agents from retaliating in any manner against him, including transferring him in retaliation for filing this action.*fn1
Motion for Summary Judgment
Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Fed. R. Civ. P. 56(c) is met. "The judgment sought shall be rendered forthwith if... there is no genuine issue as to any material fact, and... the moving party is entitled to 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, 106 S.Ct., 2548, 2553 (1986). "[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, 106 S.Ct. at 2552. "[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, 106 S.Ct. at 2553.
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, 106 S.Ct. 1348, 1356 (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, 106 S.Ct. at 1356 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, 106 S.Ct. 2505, 2510 (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 ...