FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983, alleging that defendant Rohrer was deliberately indifferent to his serious medical needs when Rohrer refused to renew medical orders to have plaintiff housed on the first floor of the prison. Defendant has filed a motion for summary judgment.
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 May 14, 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), cert. denied, 527 U.S. 1035 (1999) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
On July 28, 2007, plaintiff was shot in the right hip during a riot at High Desert State Prison. Depo. of Jamel Walker (Walker Depo.) at 14:25, 16:10-12.*fn1 He had surgery the following day and three pins were placed in his hip. Id. at 17:7; Opposition (Opp'n) at 7.*fn2 When he returned to High Desert, he was in a wheelchair and so was assigned to the Correctional Treatment Center (CTC). Walker Depo. at 19:23. After he began using a walker, in October 2007, plaintiff was released to Administrative Segregation (Ad Seg), where he was given an accommodation chrono for assignment to a lower bunk on a lower tier, which meant that he was housed on the ground floor of a housing unit, in a ground level bed. Id. at 20:8-18; Mot. for Summ. J. (MSJ), Decl. of J. Rohrer (Rohrer Decl.) ¶¶ 8-9. Although the chrono was written for ninety days only, plaintiff was given a lower bunk on the ground floor during the rest of his placement in Ad Seg. Walker Depo. at 17:24-25, 18:6-7; MSJ, Ex. B. During physical therapy sessions in March and April 2008, plaintiff was counseled to walk without his cane as much as possible and to work on developing a normal gait. Medical records reflect that he told the physical therapist he continued to have hip pain, but mostly at night. Rohrer Decl., Ex. A.
On July 15, 2008, plaintiff was transferred to California State Prison--Solano. Walker Depo. at 23:15-18. He asked a nurse for assignment to a lower bunk and a lower tier and when her request was ignored, he filed a grievance. Id. at 24:24-25, 25:6-11. During this time, climbing stairs and getting into a top bunk caused him pain. Id. at 25:13-14.
On August 19, 2008, plaintiff had an appointment with defendant, Dr. Rohrer. Walker Depo. at 28:16; Rohrer Decl. ¶ 7. Plaintiff told defendant that his right hip hurt from walking up and down the stairs. Walker Decl. ¶ III 2*fn3 ; Walker Depo. at 28:25, 29:1. After reviewing plaintiff's medical records, however, defendant believed that plaintiff should not be given a lower tier chrono because the continued weakness in plaintiff's right leg stemmed in part from non-use and atrophy, which would progress if plaintiff avoided using the leg. Rohrer Decl. ¶ 7. Defendant examined plaintiff's legs and tested his reflexes. Walker Depo. at 28:19-22. He told plaintiff he would give him a lower bunk chrono and some Motrin, but said that plaintiff needed to ...