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 cross-motions for summary judgment by plaintiff (Dkt. No. 16) and by defendants Hampton and Swett (Dkt. No. 21). Defendants filed an opposition to the plaintiff's motion for summary judgment on February 18, 2010. (Dkt. No 21.) Plaintiff filed an opposition to defendants' cross-motion on March 4, 2010. (Dkt. No. 24.) Plaintiff filed a reply to defendants' opposition on March 1, 2010. (Dkt. No. 23.) Defendants filed their reply to plaintiff's opposition on March 23, 2010. (Dkt. No. 28.)
This case is proceeding on the original complaint (Compl.), filed April 3, 2009.
(Dkt No. 1.) Plaintiff alleges that Hampton and Swett were deliberately indifferent to his serious medical needs because they delayed and denied him access to medical treatment. (Id.)
Plaintiff's complaint contains the following allegations: Plaintiff alleges that on May 21, 2006, at California State Prison Sacramento ("CSP-Sac"), about 10:00 a.m., he began experiencing dizzy spells, shortness of breath and difficulty breathing. Plaintiff attempted to get the tower officer's attention, to no avail. At some point thereafter, plaintiff allegedly fainted and hit his head on the floor. He again attempted to gain the tower guard's attention without success. Plaintiff then started blocking off his windows to get an officer to respond. Defendant Hammond came to count plaintiff at 11:00 a.m., and plaintiff advised Hammond of his efforts to gain medical attention. Hammond allegedly told plaintiff he could "go down to the gate at next yard." (Compl. at 4.)
When plaintiff's cell door opened, plaintiff exited the cell and allegedly fainted. Plaintiff alleges he was left laying on the tier until yard count was completed. After awhile, two officers came and told plaintiff to get up and return to his cell and if he did not, they would pick him up and put him in his cell, which they did. Then an R.N. came and asked plaintiff what was wrong. Plaintiff allegedly told the R.N. of his shortness of breath, difficulty breathing, fainting three times and dizziness. The R.N. took his vitals and gave him a hand/eye coordination test. Plaintiff alleges she told staff to bring a gurney or wheelchair, that plaintiff had an abnormal pulse and blood pressure, bump on the side of his face, and mouth droop, which could indicate a mild stroke.
Plaintiff alleges he was helped downstairs to wait for a wheelchair and, while sitting on a stool, he allegedly fainted and fell off the stool to the floor. Plaintiff was then placed in a wheelchair, taken to clinic, where he was examined, given an EKG, ordered X rays for the next day and given pain medication.
III. Motion for Summary Judgment
Legal Standard for Summary Judgment Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 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., citing Fed. R. Civ. P. 56(c). 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. 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 exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a 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 a 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).
By order filed May 29, 2009, the court advised plaintiff of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 11); see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
The following undisputed facts ("UDF")*fn1 are either not disputed by plaintiff or defendants, or following the court's review of the evidence submitted have been deemed undisputed:
At all relevant times, plaintiff was incarcerated at CSP-Sac. UDF #1. At all relevant times, defendant Hampton was employed by the California Department of Corrections and Rehabilitation ("CDCR") as a Correctional Officer ("CO"), and had been working at CSPSac for ten years as of the date of the incidents alleged herein. UDF #3. On May 21, 2008, Hampton was manning the floor of building C-2 at CSP-Sac, the building where plaintiff was housed. UDF #4. C Facility-two block is a 180-degree design cell block with 64 cells on two levels.
The block is separated into three sections referred to as A, B and C sections. Section C has twelve cells on the top level and twelve cells on the bottom level. The cells do not have bars, but have a solid steel door. Each cell has an approximate 5" x 38" window on the cell door and a 6" x 38" window on the front wall of the cell. The top level has a balcony-type walkway called a "tier" which provides access to the upper-level cells. The doors of each cell open into the interior of the building. The bottom level opens onto a large common area, and the top level opens onto the tier. UDF #5.
The Control Booth is located in the center of the semicircle, opposite the cells, so that all cells can be seen in one view. The Control Booth is approximately nine feet above ground level, and it is not accessible from anywhere inside the building. It is enclosed in bullet-proof glass, and it has gun ports. The Control Booth has a console with controls for each section that open and close the cell doors, and the building doors. Generally, correctional officers manning the control booth provide gun coverage and monitor and control access and egress for staff and inmates to and from the building. The Control Booth has an exterior window that opens to the exercise yard. UDF #6.
Plaintiff claims that around 10:00 a.m. on May 21, 2008, he began to feel dizzy and short of breath. He claims he flashed the lights in his cell on and off, and frantically gestured to get the attention of defendant Swett who was manning the Control Booth. Plaintiff claims Swett saw him but only shrugged his shoulders and went on with his business. UDF #7. Plaintiff claims he laid down on his bunk, then got up again and fainted. He clams he again frantically gestured to Swett in the Control Booth but Swett made a "brush-off" motion. UDF #8. Plaintiff covered his cell and door windows with paper. This is called "boarding-up." Plaintiff used a damp bar of soap as glue and stuck seven or eight sheets of paper to his windows, covering up both windows. UDF #9.
Defendant Swett cannot recall any of the events of this incident on May 21, 2008. UDF A (3).
At approximately 11:00 a.m. on May 21, 2008, defendant Hampton started the custody count prior to yard release. Hampton usually starts the count on the top tier, and it takes approximately 10 to 15 minutes to complete the count. Plaintiff's cell was near the center of the upper tier in C section. Hampton arrived at plaintiff's cell door shortly after starting the count. UDF #10. "Boarding-up" is a rules violation because it prevents officers from seeing if the inmate is in his cell or if he is engaged in illegal or self-destructive conduct. Hampton ordered plaintiff to uncover his windows, which plaintiff did. UDF #11. Plaintiff claims he told Hampton that he was feeling dizzy, had chest pains, difficulty breathing, and had fainted. UDF #12. Plaintiff claims that Hampton replied, "If you had the strength to board-up, you seem alright to me." Plaintiff claims Hampton also said that he could wait until yard release, go to the gates, and "tell them you got a problem." Then he walked away. UDF #13. During this verbal exchange, plaintiff did not appear to Hampton to be experiencing any medical difficulties. Hampton Decl. ¶ 6.
At the completion of the close custody count, the inmates were released to the exercise yard. Hampton left the building to stand at the outside door to search the inmates as they exited the building to the yard. Hampton Decl. ¶ 8. Plaintiff claims that when his cell was opened for yard release, he stepped out onto the tier and fainted. Pl.'s Deposition ("Dep.") 32:14-33:8. While Hampton was standing at the outside door, the officer in the Control Booth called down to him from the exterior window and said that when plaintiff's door was opened for yard release, he walked out of his cell and laid down on the tier. Hampton Decl. ¶ 8. It is very common for inmates to lie down in an attempt to manipulate staff to get to the medical clinic. It is called going "man down." Hampton Decl. ¶ 9; Bakewell Decl. ¶ 8; Hamkar Decl. ¶ 7.
In admissions and interrogatory responses, Hampton admits other inmates were released and were walking over and around plaintiff as he laid on the tier.*fn2 UDF B (13). Generally, an officer who knows or has reason to know that the inmate is in need of immediate medical care must take reasonable action to summon such medical care. UDF B (14). Defendant Hampton admitted he has no training in diagnosis of medical problems. UDF C (15). Hampton ...