The opinion of the court was delivered by: David O. Carter United States District Court Judge
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Binoye Naku's ("Defendant") Motion for Summary Judgment (the "Motion"). After considering the moving, opposing, and replying papers, the Court hereby GRANTS the Motion.
Petitioner Ted Lewis ("Petitioner") filed the instant lawsuit under 42 U.S.C. §1983 alleging that Defendant Binoye Naku ("Defendant") was deliberately indifferent to his medical needs in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Petitioner has had numerous complaints of back pain while housed at Salinas Valley State Prison due to an injury sustained on May 6, 1999. After being transferred to CSP-Solano on August 16, 2005, Petitioner continued to complain of back pain due to both the May 6, 1999 injury and degenerative disc dysplasia. On December 29, 2005, Petitioner allegedly tripped over a stool while working as a metal fabricator at CSPSolano, thereby allegedly injuring his lower back and right knee.
On April 18, 2006, Defendant saw Petitioner for the first time for a complaint of dizziness and a general problem with his right ear. Defendant avers that Petitioner did not mention any claim of back pain at that time. Defendant diagnosed Petitioner with a perforated right ear drum and wrote him an order for batteries for his hearing aid. On April 21, 2006 Petitioner scheduled an appointment with Defendant, for which he allegedly did not appear. On May 15, 2006, Petitioner was seen by Defendant for his back pain. Defendant states:
During the physical examination, [Defendant] directly placed his hands on [Petitioner] and found that [Petitioner] was not in distress and that [Petitioner's] lumbar spine was remarkable only for point tenderness at the mid back. [Defendant] diagnosed [Petitioner] with osteoarthritis based on [Petitioner's] history of chronic back pain,  subjective complaints,  age [Petitioner's date of birth is 4/24/58) and his physical examination fo [Petitioner]. [Defendant] wrote [Petitioner] a prescription for Motrin, a non-steroidal anti-inflammatory drug, to be taken three times per day as needed for pain for 60 days, and Robaxin, a muscle relaxant, 750 mg twice a day for 30 days. On May 15, 2006, [Defendant] also wrote an order for [Petitioner] to be seen again in 30 days, wrote an order for biweekly complete blood counts for 30 days, and wrote [Petitioner] an order to have a complete blood count taken that day.
Summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
The Court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993 (1962); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial, but it need not disprove the other party's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548 (1986). When the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out that the non-moving party has failed to present any genuine issue of material fact. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990).
Once the moving party meets its burden, "an opposing party may not rely merely on allegations on denials or its own pleading; rather, its response must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party. Fed. R. Civ. P. 56(e)(2); see also Anderson, 477 U.S. at 248-49. Furthermore, a party cannot create a genuine issue of material fact simply by making assertions in its legal papers. There must be specific, admissible evidence identifying the basis for the dispute. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1980). The Supreme Court has held that "[t]he mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for [the opposing party]." Anderson, 477 U.S. at 252.
When prison officials are deliberately indifferent to the serious medical needs of those under their control, the Eighth Amendment proscription against cruel and unusual punishment is violated. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976). A determination of deliberate indifference requires an examination of two elements: (1) the seriousness of the prisoner's medical needs; and (2) the nature of the defendant's response to that need. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992).
"[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Isolated occurrences of neglect do not constitute deliberate indifference to serious medical needs. See Jett v. Penner, 439 F.3d. 1091, 1096 (9th Cir. 2006). To establish deliberate indifference, the prison official must know of, and disregard, an excessive risk to the patient's health and safety. Toguchi v. Chung, 391 F.3d 1057-1058. The ...