The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge
Plaintiff Silvester Gomez is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C.§ 1983. On April 26, 2006, Gomez filed a verified complaint against twelve state officers. (Doc. 1). This Court screened the complaint pursuant to 28 U.S.C. § 1915A(a). This Court found that Gomez alleged colorable claims for violations of the Fourth, Eighth, and Fourteenth Amendments against Dr. Chenik, Dr. Greeves, Dr. K. Thirakomen, and Dr. T. Hasadsri. The complaint against the remaining defendants was dismissed without prejudice pursuant to 28 U.S.C. § 1915A(b)(1).*fn1 Gomez was given leave to file an amended complaint within thirty-five days. He did not do so. (Doc. 14). Therefore, only the claims against Dr. Thirakomen and Dr. Hasadsri are pending before this Court.
On April 27, 2009, Dr. Thirakomen and Dr. Hasadsri filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 78-230(m). They contend that "the undisputed facts show that Defendants were not deliberately indifferent to Plaintiff, that Defendant Hasadsri did not retaliate against Plaintiff, and that Defendants are entitled to qualified immunity." (Doc. 63).
On May 1, 2009, this Court directed Dr. Thirakomen and Dr. Hasadsri to file a supplemental letter brief advising this Court whether they were seeking summary judgment regarding Gomez's Fourteenth Amendment claim as well. On May 8, 2009, Dr. Hasadsri filed a response in which he argues that Gomez has failed to present facts showing a violation of his right to due process under the Fourteenth Amendment. (Doc. 70).
Gomez filed his opposition to the motion for summary judgment on May 21, 2009. He asserts that there are genuine issues of material facts in dispute that require the denial of the motion for summary judgment.
For the reasons set forth below, the motion for summary judgment is granted.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is 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). A principal purpose of summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those which may affect the outcome of the case. Id. at 248. "Summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the non-moving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2001).
If the moving party meets this initial burden, the non-moving party must rebut the moving party's arguments by proffering specific facts that show a genuine issue for trial exists. Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007). Generally, the non-moving party may not rely upon the allegations of its pleadings to establish the existence of a factual dispute, and 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. Fed. R. Civ. P. 56 (e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 at n.11 (1986).
When the non-moving party proceeds pro se, however, the non-moving party may rely on underlying verified documents without additional affidavits or admissible discovery materials to show a genuine issue exists warranting a trial. A court must consider all contentions tendered in a pro se party's opposition to the summary judgment, motions, and pleadings as evidence to support his assertion that genuine issues of facts exist, when such contentions and facts are predicated on personal knowledge and were attested to under penalty of perjury.*fn2 See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (holding that allegations contained in a pro se plaintiff's verified pleadings must be considered as evidence for purposes of summary judgment).
In deciding whether to grant summary judgment, courts must consider the evidence in the light most favorable to the non-moving party, and must not make credibility findings. Anderson, 477 U.S. at 255. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). Nonetheless, courts are not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
Section 1983 requires that the evidence show that a person has caused the deprivation alleged to have been suffered by another. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692 (1978). In Johnson v. Duffy, 588 F.2d 740, (9th Cir. 1978), the Ninth Circuit held that "[a] person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Id. at 743. Therefore, to state a claim for relief under section 1983, plaintiffs must link each defendant with an affirmative act or omission that demonstrates a violation of his federal rights.
In their motion for summary judgment, Dr. Thirakomen and Dr. Hasadsri argue that Gomez has failed to demonstrate a deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Dr. Hasadsri maintains that the record shows he did not retaliate against Gomez by denying a 602 appeal, and failing to approve Gomez's request for a referral to Dr. Suesberry, an eye, ear, and nose specialist. Dr. Hasadsri ...