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 defendants' motion for summary judgment, filed on December 10, 2008, to which plaintiff filed an opposition on January 7, 2009, after which defendants filed a reply, on January 14, 2009.
This court has previously set forth the allegations of the amended complaint, as follows herewith, with any necessary modification. This action proceeds on the amended complaint, filed on 11/22/06,*fn1 against defendants employed at Folsom State Prison (FSP): former Warden Diana K. Butler; Correctional Sgt. S. Johnson; Correctional Officer (C/O) Tuggle; C/O D. Ramirez; and C/O P. Cordero. Plaintiff contends that on September 4, 2003, while he was working at his assigned work station in the culinary department, waiting for a large dishwashing tank to fill with hot water, under the direct supervision of defendants Tuggle, Ramirez, Cordero and Johnson, a high pressure hot water hose became unattached from the tank, lifting up and out of control, spraying scalding water directly at plaintiff, and at another inmate, named Smith. Amended Complaint (AC), p. 8. Plaintiff (and the other inmate) moved quickly to avoid being scorched by hot water from the errant hose, whereupon plaintiff slipped on the wet floor and fell, injuring his left knee, causing immediate pain and swelling. Id. Plaintiff contends that Tuggle, Ramirez, Cordero and Johnson failed to supervise the inmates assigned to the scullery area and that the unsupervised inmate filling the washing tank left his work area. Id. Plaintiff alleges that defendants knowingly failed to install a high pressure hot water hose safety device to secure the high pressure hot water hose inside the dishwashing tank. Id., at 9. This omission, in combination with the failure to supervise inmates assigned to use this equipment, made serious injury or death more probable. Id.
Plaintiff alleges that defendants' were deliberately indifferent to a hazardous working condition in violation of the Eighth Amendment and the injury that resulted caused an increase in his pain and suffering because plaintiff suffers from severe osteoarthritis in both knees and has had two ineffective surgeries to his left knee with a full knee replacement scheduled. AC, pp. 9-10. He claims to have lost use of his legs and suffered an overall deterioration of his health. Id., at 9. Plaintiff also contends that defendants acted in reckless disregard for his safety. Id., at 10.*fn2 Plaintiff seeks general, special and punitive damages. See Order, filed on September 24, 2008 (docket # 28), pp. 1-2.
Motion for Summary Judgment
Defendants move for summary judgment, seeking judgment as a matter of law, contending that they were not deliberately indifferent to plaintiff's health and safety; that they did not require plaintiff to work in an unsafe environment; that they did not have a duty to inspect or repair the area or equipment plaintiff contends was defectively maintained; that they did not have notice of any potential risk to plaintiff's health or safety and did not intentionally disregard any such risk, if it existed. Motion for Summary Judgment (MSJ), pp. 1-7.
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, 106 S.Ct. 2548, 2553 (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, 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 trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (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, 106 S.Ct. at 1356. 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, 106 S.Ct. at 1356 (citation omitted).
On May 24, 2007, 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); ...