The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
James Jennings is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 5.) On May 8, 2007, Jennings filed a verified amended complaint alleging that Defendants R. L. Andreasen, M.D., James Bick, M.D., J. Kofoed, M.D. and A. J. Sawicki, M.D. (collectively "Defendants") were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. (Doc. 13.)*fn1 The gravamen of Jennings's amended complaint is that Defendants have, in concert, intentionally delayed and denied surgical procedures to remedy pain in his right ankle that was caused by an osteochondral lesion along the medial dome of the talus.
On August 15, 2008, Jennings underwent right ankle arthroscopy with debridement and currettage, debridement and microfracture of talar dome defect, posteromedial talar dome at the St. Mary's Medical Center. (Doc. 39, Ex. G at 111.) Jennings's claim that he was denied surgery is now moot since the surgery requested has been performed and Jennings has not provided any evidence that he has not received post-operative care. The issue before this Court, therefore, is whether the Defendants' conduct, or lack thereof, which delayed the scheduling of surgery for Plaintiff's right ankle, constituted deliberate indifference and violated the Eighth Amendment.
On May 4, 2009, Defendants filed a motion for summary judgment on the ground that there are no disputed material facts and that they are entitled to judgment as a matter of law. (Doc. 39.) Jennings filed a timely opposition on July 2, 2009 (doc. 54); Defendants have timely replied on July 7, 2009 (doc. 55). 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). In opposing summary judgment, a nonmoving party must "go beyond the pleadings and, by . . . affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (citing Fed. R. Civ. P. 56(e)). A principal purpose of summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Id. at 323-24.
"[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. If the moving party demonstrates an absence of a genuine issue of material facts, then the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). According to Rule 56(e) of the Federal Rules of Civil Procedure, the opposing party must provide "specific facts showing there is a genuine issue for trial." Id. at 587 (emphasis in original).
"On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). A district court must not make any credibility findings. Anderson, 477 U.S. at 255. "The moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007). "Once the moving party meets its initial burden, however, the burden shifts to the non-moving party to set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." Id. (internal quotation marks omitted).
Where the party resisting a motion for summary judgment is pro se, the court "must consider as evidence in his opposition to summary judgment all of [his] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [he] attested under penalty of perjury that the contents of the motions or pleadings are true and correct." Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 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., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). 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).
Jennings's federal constitutional claims can be summarized as follows:
1. The delay in providing adequate treatment for his serious medical needs with regard to his right ankle violated the Eighth Amendment's protection against cruel and unusual punishment.
2. The Defendants' delay in providing "constitutionally adequate treatment" to Jennings constitutes deliberate indifference to Jennings's serious medical needs.
3. Dr. Andreason and Dr. Bick inflicted wanton and unnecessary pain and emotional distress on Jennings by not responding to Jennings's complaints of pain and ...