FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action. On February 5, 2009, this court recommended that motions for summary judgment filed by defendants Rohlfing, Armoskus, Boitano, Cobb, Cox, Dreith, Eder, Felker, Fleming, Kopec, McCraw, Miranda, Platt, Vanderville, Wong and Wright be granted, but that the motion filed by defendant Brown be denied. The district court adopted this recommendation on September 21, 2009, but allowed Brown to file a renewed motion for summary judgment. That motion is currently pending before the court.
I. Summary Judgment Standards
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 August 17, 2006, 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).
As the result of surgery on his eye, plaintiff has a fixed pupil in his right eye, which has rendered him sensitive to light. Docket No. 193 at 7*fn1 (Ex. B-1 at 1; medical progress note). He has a medical chrono, which allows him to wear sunglasses at all times; in addition, it has been recommended that he avoid bright lights. Docket No. 223-2 at 3. Plaintiff wears sunglasses when outside or inside when the lights are bright; in dim, indoor light, he does not wear the sunglasses. Deposition of John Jordan (Jordan Depo.) at 8:1-2, 63:8-12.*fn2 Prolonged exposure to bright lights is painful and causes him to lose consciousness. Id. at 62:23-24. Even with dark glasses, it is painful for plaintiff to be exposed to bright lights for extended periods of time. Id. at 60:9-15. On November 19, 2002, Dr. Baron instructed plaintiff to avoid bright lights and renewed a chrono that allowed plaintiff to wear dark glasses even indoors. Docket No. 190-4 at 8 (Ex. A-1 at 131).
To protest his placement in segregation for investigation of gang affiliation, plaintiff undertook a hunger strike. Jordan Depo. at 83:8-9. As a result, he was transferred to the Correctional Treatment Center on November 25, 2002. Id. at 82:21-23. His cell in CTC had one long overhead light; plaintiff had no control over this light. Id. at 65:18-21, 66:5, 82:8-9. The light usually came on at 5:00 or 6:00 a.m. and stayed on until 9:00 p.m. Id. at 74:6-9. The policy for CTC required that the overhead lights be on when the food port was opened or when staff members approached a cell door. Id. at 89:20-25, 90:3-4; MSJ, Decl. of Donald J. Brown (Brown Decl.; Docket No. 247-2) ¶ 2. "The policy provided that all other times, the cell light could be dimmed, if ordered for medical reasons." Brown Decl. ¶ 2.
On November 27, 2002, Dr. Rohlfing wrote an order directing that the lights in plaintiff's cell be dimmed and the order was placed on the door of plaintiff's cell. Am. Compl. ¶ 69; Docket No. 223-1 at 101.
On November 30, 2002, Brown was serving as Watch Commander. Officer McGuire told him that medical staff had posted a note on plaintiff's cell, saying that the lights were to remain off at all times; the staff were interpreting that to mean that the lights should remain off even when ...