The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendants acted with deliberate indifference to his serious medical needs.
On September 1, 2009, plaintiff filed a summary judgment motion. On October 16, 2009, defendants filed an opposition to plaintiff's motion and a cross-motion for summary judgment. Plaintiff did not file an opposition to defendants' cross-motion. Accordingly, on January 11, 2009, the court ordered plaintiff to show cause for his failure to oppose defendants' motion within fourteen days. Fourteen days passed and plaintiff did not respond to the January 11, 2009, order. Nevertheless, the court construes plaintiff's summary judgment motion as an opposition to defendants' motion.
After carefully reviewing the record, the court recommends that plaintiff's motion be denied and defendants' motion be granted in part and denied in part.
II. Summary Judgment Standards Under Rule 56
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 February 3, 2009, 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); Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
At all relevant times, plaintiff was a state prisoner at California State Prison- Sacramento (CSP-Sac). At all relevant times, defendants Brown and Hartwell were employed at CSP-Sac as Licensed Vocational Nurses (LVN). At all relevant times, defendant Bal was the Chief Medical Officer at CSP-Sac. At all relevant times, defendant McAlpine was a medical doctor employed at CSP-Sac.
On March 30, 2008, plaintiff was seen at A Facility Treatment and Triage with complaints of a skin rash that had started three days earlier.*fn1 Plaintiff's thigh, abdomen and right arm pit were red and swollen. The right thigh had an open area. Dr. Reddy ordered Bactrim, two tablets to be taken two times a day for ten days, and Ibuprofen to be taken two times a day for five days for pain. These drugs were given to plaintiff to take as prescribed.
On April 4, 2008, plaintiff returned to the Medical Facility complaining about the wounds on his abdomen, thigh and armpit. Dr. McAlpine examined plaintiff's wounds and determined that he needed to have the stomach and thigh wounds incised and drained. He scheduled plaintiff for surgery immediately.
On April 4, 2008, Dr. Wedell performed an incision and drain of plaintiff's left abdomen wall and right thigh. The wounds were packed with gauze and he took a wound culture. Dr. Wedell prescribed Rifampin 600 mg double strength to be taken two times a day for fourteen days and Tylenol 974 mg three times a day for fourteen days as needed for pain. Plaintiff was to keep these medications on his person. Dr. Wedell also prescribed daily wound dressings by a Registered Nurse in B Facility. An entry in plaintiff's medical records on April 4, 2008, by someone unknown states that plaintiff's wound dressings were to be changed until healed.
On April 4, 2008, at 6:15 p.m. plaintiff was seen at B Facility for a dressing change.
On April 7 2008, the culture of plaintiff's wounds were confirmed as staphylococcus aureus resistant, i.e. MRSA.*fn2
On April, 9, 2008, defendant McAlpine ordered that plaintiff could do self-applied dry dressing changes to his abdomen and right thigh wounds for the next five days.
On April 18, 2009, defendant McAlpine examined plaintiff.*fn3 Plaintiff told defendant McAlpine that he had not taken his Bactrim because a LVN had told him to stop taking it. Defendant McAlpine wrote in the entry for that date, "the inmate was not aware that both drugs are to be taken concomitantly." Defendant observed that plaintiff's right arm pit had healed. The abdomen wall still had loculation (small cavity with fluid) and drainage, and the right thigh had one centimeter of loculation. The wounds were still active so defendant McAlpine refilled plaintiff's prescriptions for Rifampin and Bactrim for seven days. Plaintiff was told to return in ten days for nasal swabs to assess MRSA colonization.
On April 24, 2008, defendant McAlpine saw plaintiff. Plaintiff had no new sores. His right armpit and right thigh were healed. There was no drainage from the abdomen wound. Defendant McAlpine determined that the MSRA had been ...