FINDINGS & RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983, alleging that defendants Taylor and Storrs*fn1 were deliberately indifferent to his serious medical needs. Defendants have filed a motion for summary judgment. Plaintiff has opposed Taylor's motion for summary judgment but "apologizes to Nurse Storrs for misidentifying him as the nurse who saw him" and does not oppose Storrs' motion. Storrs' motion thus should be granted. Taylor's motion is discussed below.
I. Standards For A Summary Judgment Motion
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 (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. "[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.
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 (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. 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 (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 (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. 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 (citation omitted).
On January 19, 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), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
Plaintiff is an inmate at Mule Creek State Prison. Compl. at 1-2. Charlice Taylor is a registered nurse, employed at Mule Creek State Prison. Motion for Summary Judgment (MSJ), Declaration of Charlice Taylor (Taylor Decl.) ¶ 1. At the time relevant to plaintiff's claims against her, Taylor worked in the A yard clinic doing assessments of patients; this job included taking vital signs, taking medical histories, obtaining specimens for testing, monitoring patients and administering medications as directed by a doctor. Id. ¶ 2.
When an inmate seeks medical care for a non-threatening problem, he must fill out a Health Care Service Request Form 7362 (Form 7362). From these forms, the clinic nurse devises a schedule of inmates with emergent problems to be seen immediately. Taylor Decl. ¶ 3 & Ex. A. According to California Department of Corrections and Rehabilitation (CDCR) policy, the triage nurse shall annotate the Form 7362 with a physician referral, if deemed necessary. The Form ultimately is filed in the inmate's medical records. Taylor Decl. ¶ 3 & Ex. A, Section III.C.6-7.
On December 23, 2004, plaintiff began to have difficulty breathing. On a Form 7362 dated that day, he wrote, "brochittis is reoccured. Coughing." Opp'n, Declaration of Michael Macahilas (Macahilas Decl.) ¶¶ 1-2 (reproduced as in original); Taylor Decl. ¶ 7 & Ex. B. The correctional officer at the clinic entrance took plaintiff into the clinic and asked Taylor to see him. Macahilas Decl. ¶ 7. Taylor avers she does not remember the events of December 23 and has relied on medical records to recreate her actions on that day. Taylor Decl. ¶ 5.
According to Taylor, plaintiff reported he had been coughing with mucous for a week and had a sore throat and chest. Id. ¶ 8 & Ex. C. She observed that plaintiff's lungs were clear with a good airflow, both exhaling and inhaling. Id. She recorded that plaintiff's vital signs were within normal limits, that he was not in distress and that he was able to cough up mucous. Id. She did note that plaintiff was "at risk for infection as evidence[d] by his coughing up mucous." Id. However, nurses ...