The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are motions for summary judgment by defendants Sisto, Scotland, Beyer, Crawford, Rallos and Bean, filed on September 14, 2009 (Dkt. No. 43), and defendant Munson, filed on February 12, 2010 (Dkt. No. 70). Plaintiff properly filed an opposition to the first motion for summary judgment on October 29, 2009 (Dkt. No 50) and then proceeded to file additional oppositions on November 25, 2009 (Dkt. No. 56), and December 17, 2009 (Dkts. No. 57, 58), despite the court denying plaintiff's motion to file additional oppositions on November 25, 2009 (Dkt. No. 54).*fn1 Plaintiff properly filed an opposition to Munson's motion for summary judgment on February 18, 2010 (Dkt. No. 72), and then filed an additional opposition on March 15, 2010 (Dkt. No. 79).
This case is proceeding on the original complaint (Compl.), filed July 25, 2006. Dkt No. 1. Plaintiff alleges that Sisto, Beyer, Rallos, Bean and Munson were deliberately indifferent to his serious medical needs, and Scotland and Crawford covered up the other defendants' actions by denying plaintiff's inmate appeal.
Plaintiff states that in the evening of October 19, 2005, at California State Prison Solano (CSP-Solano), while walking down the stairs from his top tier cell, he had a seizure and fell down some stairs injuring himself. Plaintiff was taken to the medical clinic where he was treated by Nurse Munson. Plaintiff was in pain and wanted to be seen by a doctor, but his request was ignored. Plaintiff alleges that he had pain in his neck, head, shoulder, ribs, leg and feet. After plaintiff was discharged by the clinic, Correctional Officer ("C/O") Beyer escorted plaintiff back to his cell and allegedly ignored plaintiff's statements that he needed to be seen by a doctor. Plaintiff contends that Dr. Rallos examined him the following day regarding the fall and did not provide adequate medical care.
Plaintiff argues that he had a chrono that stated he must be on lower bunk and in a lower tier cell due to his seizures, but he was nonetheless housed on an upper tier. Plaintiff states that C/Os Beyer and Bean were aware of this tier restriction and should have housed him on a lower tier cell so he would not have to walk stairs.
After the fall, plaintiff filed an inmate appeal seeking pain and seizure medication. Scotland interviewed plaintiff regarding the incident and based on that interview Crawford signed a memorandum concerning the first level response to the appeal which was partially granted.
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).
The following of defendants' 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 CSP-Solano. DUF #1. At all relevant times, C/O Bean was employed as a Correctional Treatment Center Officer. DUF #2. At all relevant times, C/O Beyer was employed as a Correctional Officer. DUF #3. At all relevant times, Dr. Rallos was employed as a physician-surgeon. DUF #5. At all relevant times, Nurse Munson was employed as a nurse. Munson Motion for Summary Judgment (Munson MSJ), Exh. E. At all relevant times, Scotland was employed as a Correctional Sergeant. DUF #6. At all relevant times, Crawford was employed as an Associate Warden. DUF #4. During the relevant times, Sisto did not work at CSP-Solano. DUF #7.
Plaintiff had sporadic seizures since 1986. DUF #8. Plaintiff was incarcerated at CSP-Solano from 2003 to 2006, and he suffered approximately six seizures in that time period. DUF #10. When an inmate's condition requires an accommodation, the treating physician issues a chrono. DUF #11. Only physicians may issue or alter chronos based on prisoner's medical needs; custodial staff are not authorized to issue or modify chronos. DUF #13. When a chrono is issued it supersedes all contrary chronos in effect at the time. Motion for Summary Judgment (MSJ), Declaration Dr. Rallos at ¶ 22.
Plaintiff had a chrono to provide a lower bunk and a lower tier cell from August 2, 2004, to August 2, 2005. DUF #15. From August 9, 2004, to March 10, 2005, plaintiff was housed in lower tier cell. DUF #16. On November 23, 2004, another doctor issued plaintiff a new chrono for a lower bunk but not for a lower tier cell. DUF #17. This chrono was good for one year until November 23, 2005. Id. Regardless of the new chrono that did not mandate a lower tier cell, plaintiff remained in a lower tier cell until March 10, 2005. DUF #16, 17.
Plaintiff was housed in an upper tier cell for one day on March 20, 2005, for nearly a month starting on April 22, 2005, and then from July 24, 2005, to October 19, 2005. DUF #18, 19.
On October 19, 2005, plaintiff was housed in an upper tier cell. DUF #19. On October 19, 2005, at approximately 9:00 pm, plaintiff had a seizure and fell down some stairs in his housing building. DUF #21. Plaintiff did not sustain any lacerations and was not bleeding after the fall. DUF #22. A cervical collar was applied to plaintiff at the scene. Munson MSJ, Exh. E.
Approximately 10 minutes after the fall, plaintiff was taken to the medical clinic and seen by Nurse Munson. DUF #23. Nurse Munson took plaintiff's vital statistics including blood pressure which was 110/70, heart rate which was 76 and temperature which was 97.4. Munson MSJ, Exh. E. Nurse Munson observed no injuries and noted plaintiff complained of neck pain. Id. On Nurse Munson's handwritten Outpatient Interdisciplinary Progress Notes report, she only indicted that plaintiff denied tenderness to any area other than at the base of the neck. MSJ, Exh. 4. Approximately 30 minutes later, Nurse Munson again took plaintiff's vitals and found that blood pressure was 112/64 and his heart rate was 69. Munson MSJ, Exh. E. Nurse Munson also phoned non-defendant Dr. Roher, who was familiar with plaintiff's medical history and symptoms, to discuss plaintiff's fall. DUF #25. Dr. Roher prescribed an injection of Toradol, a pain medication, but plaintiff refused.*fn2 DUF #26, 27.
Nurse Munson discharged plaintiff from the clinic and C/O Beyer escorted plaintiff back to his housing unit. DUF #28. En route back to the housing unit from the clinic, plaintiff told C/O Beyer that he needed medical attention and C/O Beyer replied he could not help plaintiff. DUF #29.
The next day after the accident, October 20, 2005, plaintiff was examined by Dr. Rallos. DUF #30. Dr. Rallos' notes indicate that plaintiff only complained of a headache and decreasing vision.*fn3 DUF #33. Dr. Rallos' notes do not refer to any other pain complaints from plaintiff. DUF #34. Dr. Rallos found that plaintiff's pupils were normal, he had a full range of motion, his heart had a regular rate of rhythm, his lungs were clear and his grip was weak. DUF #35. Dr. Rallos stated in her notes that plaintiff's weak grip was secondary to his poor effort and she had observed plaintiff in the waiting room holding magazines and other papers without dropping them and he was able to get off the examination table ...