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 are defendants Rad, Chin, Pappoe, Stevenson and Don's motion for summary judgment filed on November 24, 2009. Plaintiff filed an opposition on December 15, 2009 and defendants filed a reply on December 18, 2009. For the reasons that follow, the court recommends that the motion be granted and these defendants be dismissed from this action.
This case is proceeding on the first amended complaint (FAC), filed on February 26, 2009. Plaintiff alleges that these defendants, all of whom are doctors employed at the University of California Davis Medical Center (UCDMC), were deliberately indifferent to his serious medical needs. Prior to being treated at UCDMC, plaintiff was being treated by medical staff at Mule Creek State Prison (MCSP) where he is incarcerated, for a nephrotic syndrome related to his kidneys.*fn1 Plaintiff was taken to UCDMC to be seen by nephrologists (kidney disease specialists) at that facility after experiencing very high blood pressure and protein in his urine. Plaintiff's allegations against the UCDMC defendants involve delays in signing medical reports, conducting tests and following up on tests. Plaintiff contends that his condition worsened as a result of these delays.
Plaintiff alleges that Dr. Rad and Dr. Chin took over 30 days to file their medical reports and despite saying they would see plaintiff again in three months, it took five months. Plaintiff also states that these doctors ordered tests, but no new treatment.
Plaintiff states that Dr. Pappoe and Dr. Stevenson diagnosed several problems with plaintiff's kidneys but did not file their report until one week after the exam, which plaintiff contends led to a seven week delay in obtaining a kidney biopsy.
Plaintiff alleges that, at a later exam, Dr. Pappoe and Dr. Don reordered the biopsy but did not file their report until a week later, which further added to the delay in obtaining the biopsy.
At another meeting with Dr. Pappoe and Dr. Don, they recommended that plaintiff receive a colonoscopy, but did not file their reports until over 30 days later which delayed the colonoscopy.
Plaintiff generally alleges that all of these delays added to the deterioration of his kidney, caused pain and suffering and defendants were aware or should have been aware that this would result.
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 ...