The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Dr. Brett Williams' ("Williams") motion for summary judgment, filed on April 14, 2009 (Dkt. No. 126), to which plaintiff filed his opposition on May 5, 2009 (Dkt. No. 128).*fn1 Defendant filed a reply on May 18, 2009 to which plaintiff filed an additional opposition. Dkt. Nos. 131, 132, 133.
II. Second Amended Complaint
This case is proceeding on the second amended complaint (SAC), filed January 12, 2007, against defendants Williams, Correctional Sergeant Frates and Correctional Officer Moore. Only defendant Williams has moved for summary judgment in the instant motion.
Plaintiff alleges that defendants Moore and Frates subjected plaintiff to cruel and unusual punishment and were deliberately indifferent to a substantial risk of serious harm by placing him in and then failing to remove him from an unsafe situation. Plaintiff contends that defendants failed to protect him, even promoting inmate-on-inmate violence, in violation of his rights under the Eighth Amendment, as well as his due process rights under the Fourteenth Amendment. As a result, plaintiff was assaulted by another inmate thereby suffering physical and emotional injuries. SAC at 10-12.
The attack on plaintiff resulted in lacerations and bruises to plaintiff's face and body, severe trauma to both his shoulders, broken bones in his right hand and a broken nasal passage. Plaintiff also contends that he contracted Hepatitis C from the inmate who attacked him. SAC at 9.
The attack occurred on July 9, 2001. After submitting requests for medical treatment, in a response on August 5, 2002, non-defendant Dr. Douglas ordered x-rays and blood tests for plaintiff. However, Mule Creek State Prison (MCSP) medical staff did not comply with the orders, after which plaintiff submitted additional inquires as to why the orders were ignored. In response, defendant Williams told plaintiff he had reviewed plaintiff's medical file, assuring him that plaintiff would receive the doctor-ordered x-rays and blood tests and any treatment that was necessary. SAC at 9-10.
Not until approximately nineteen months later, on March 18, 2004, in response to an administrative appeal by plaintiff, were the blood tests that had been ordered by Dr. Douglas on August 5, 2002, performed at which point plaintiff's Hepatitis C was discovered. Only on May 21, 2004, were the x-rays taken that had been ordered by Douglas on August 5, 2002. The x-rays revealed plaintiff's fractured distal right metacarpal and his shoulder injury which prompted further examination. Additional diagnostic examination of the shoulder revealed that a steel rod needed to be inserted, for which surgery plaintiff was still waiting at the time of filing the instant second amended complaint, and from which untreated injury plaintiff allegedly suffers constant pain. Plaintiff alleges that defendant Williams' inaction and deliberate indifference has resulted in further significant injury to his shoulder and the ongoing failure to treat his shoulder is likely to cause more injury. SAC at 10, 12-13.
Plaintiff seeks monetary, including punitive, damages.
III. Motion for Summary Judgment
Legal Standard for Summary Judgment Summary judgment is appropriate when it is demonstrated that the standard set forth in Fed. R. Civ. P. 56(c) is met. "The judgment sought should be rendered if . . . 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).
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). "[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. at 323. 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.
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 630. 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 586 (citation omitted).
Plaintiff has not provided undisputed facts or responded to defendant's undisputed facts. The court has sifted through plaintiff's opposition in an attempt to determine plaintiff's disputed and undisputed facts.
The following of defendant's undisputed facts (DUF) are either not disputed by plaintiff, or following the court's review of the evidence submitted, have been deemed undisputed:
At all relevant times, plaintiff was incarcerated at Mule Creek State Prison ("MCSP"). DUF #1. At all relevant times, defendant Williams was a licensed medical doctor and was the chief medical officer at MCSP. DUF #2. Part of Williams' responsibilities included participation and approval of Medical Authorization Review Committee ("MARC") decisions. Motion for SJ, Exh. B, at 2. On July 9, 2001, plaintiff was involved in a fight with another inmate. DUF #3. Plaintiff was treated by a Medical Technician Associate on the day of the assault and the MTA's report does not reflect that plaintiff complained of any shoulder pain. DUF #4, 5. On July 25, 2001, plaintiff was seen by a doctor to check on plaintiff's injured hands, but the report does not indicate any complaints of shoulder pain. DUF #6, 7. On July 18, 2002, more than a year after the fight, plaintiff submitted a form to the medical ...