The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & 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' motion for summary judgment filed on September 11, 2009. Doc. 80. Plaintiff filed an opposition on October 1, 2009 and defendants filed a reply on October 8, 2009. Also pending are plaintiff's motion to submit documents and surreply (Doc. 83), defendants' motion to strike the surreply (Doc. 85), plaintiff's motion for judicial notice (Doc. 89) and plaintiff's motion to amend the complaint (Doc. 90).
Plaintiff's motion to file a surreply will be granted and the undersigned will review these exhibits, but after carefully reviewing the record it is recommended that defendants' motion for summary judgment be granted and this case closed.
This case is proceeding on the first amended complaint (FAC), filed on May 9, 2007. Plaintiff states that prior to his incarceration he suffered a torn patellar tendon in his knee for which he had to undergo arthroscopic surgery, following which he received physical therapy and pain treatment. FAC at 1-2. Upon his incarceration, plaintiff "continued to suffer chronic patellar tendonitis and pain," and at Mule Creek State Prison (MCSP) received "two courses of physical therapy (in June 2003 and August 2005)." Id. at 2. This therapy, which involved "the use of a Transcutaneous Electronic Nerve Stimulation (TENS) unit and ice," successfully resolved plaintiff's pain complaints, and the physical therapist recommended the treatment, as needed, on a continuing basis. Id. Nevertheless, defendants refused to provide plaintiff with additional physical therapy, the TENS unit or ice. Id. at 2-3.*fn1
Plaintiff alleges this lack of treatment caused him to suffer substantial chronic physical pain, in violation of the Eighth Amendment, and has caused his patellar tendonitis to degenerate. In this action, plaintiff now seeks money damages against defendants Brimhall and Akintola.*fn2
Plaintiff submitted a health care request appeal on January 24, 2006, indicating that his continual knee pain kept him awake at night and limited his mobility but that his pain could be relieved by physical therapy and access to ice and the TENS unit. On February 9, 2006, defendant Akintola saw plaintiff in response to the appeal, after which he partially granted the appeal by referring plaintiff to the MCSP medical authorization review (MAR) committee to be considered for physical therapy but "summarily and arbitrarily denied plaintiff's requests for an accommodation chrono for use of the TENS unit and ice." FAC at 11. On March 9, 2006, the MAR committee "summarily and arbitrarily denied plaintiff's request for physical therapy." Id. at 12.
Plaintiff alleges that defendant Brimhall, MCSP Health Care Manager, failed in his duty to investigate plaintiff's requests when the prison's own physical therapist had recommended certain treatment when Brimhall knew that the treatment was being denied. Id. at 12-13.
III. Motion for Summary Judgment
Legal Standard for Summary Judgment Summary judgment is appropriate when it is demonstrated that there exists "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, 106 S.Ct. 2548, 2553 (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, 106 S.Ct. at 2552. "[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, 106 S.Ct. at 2553.
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, 106 S.Ct. 1348, 1356 (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, 106 S.Ct. at 1356 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, 106 S.Ct. 2505, 2510 (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, 106 S.Ct. at 1356 (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, 106 S.Ct. at 1356. 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, 106 S.Ct. at 1356 (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:
Plaintiff developed chronic knee pain in 1995 due to his work in construction and further injured his left knee on August 14, 1996. DUF #2, 3. Plaintiff was seen by Dr. Sweeney, an orthopedic specialist, who diagnosed a torn patellar tendon. DUF #4. On January 8, 1997, Dr. Sweeney performed diagnostic arthroscopy and arthromy repair on plaintiff's torn patellar tendon. DUF #5. Plaintiff was seen by Dr. Sweeney until February 1999. DUF #6. Dr. Sweeney's final report stated: "There is residual chronic thickening over the patellar tendon" (DUF #7; Doc. 24 at 39) and "Today, [plaintiff] has only minimal complaints and continues to work as a pool cleaner with no complaints of increased symptoms with his activities. It is my opinion that he had maximized medical care at that time and no further active care is needed at this time." DUF #8; Doc. 24 at 38.
Plaintiff was incarcerated in April 2000. DUF #9. Defendant Atkinola was a physician's assistant. MSJ, Atkinola Decl. ¶ 1. Defendant Brimhall was a Health Care Manager, who is not a physician and does not diagnose illnesses or prescribe medical treatments. DUF #20.
A physician's assistant examined plaintiff on February 26, 2003 for left knee pain and recommended exercise and weight loss and referred plaintiff for a consultation with a physical therapist to assist with exercise of his patellar tendon. DUF #10.
Plaintiff's knee was x-rayed on March 3, 2003, and the doctor noted "other than a bi-partite patella, I see no abnormalities." DUF #11. In June 2003, plaintiff received 5 physical therapy sessions with a registered physical ...