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Swearington v. Wedell

August 10, 2010

DWAYNE SWEARINGTON, PLAINTIFF,
v.
DR. WEDELL, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. The motion for summary judgment brought by defendants Wedell, Duru and Duc (defendants) is before the court. This action is proceeding against defendants, all of whom are medical doctors, for alleged violations of the Eighth Amendment. See Order dated October 23, 2007. Plaintiff's amended complaint, which is signed under penalty of perjury, contains four claims, described in more detail as follows: 1) against defendant Duc arising out of plaintiff's visit with him on March 23, 2004; 2) against defendant Duc arising out of plaintiff's visit with him on November 15, 2004; 3) against defendant Wedell arising out of plaintiff's visit with him on December 27, 2004 and Wedell's alleged refusal to see plaintiff the next day; and 4) against defendant Duru arising out of plaintiff's visit with her on December 31, 2004.

I. Preliminary Matters

A. Plaintiff's Unsigned Oppositions

The court notes that on April 28, 2010, plaintiff filed three separate declarations comprising his opposition to defendants' motion for summary judgment. See Docket Entries 74-76. The only declaration that is signed is the one titled "Declaration Of [plaintiff] In Support Of [plaintiff's] Motion In Opposition To Defendant Dr. Vuong Duc's Motion For Summary Judgment." Under Rule 11 of the Federal Rules of Civil Procedure, all documents submitted by a pro se party must be signed by that party. See also Local Rule 131(b). The court cannot consider the unsigned documents filed by plaintiff in opposition to defendants' motion for summary judgment.

B. Request For Judicial Notice

Defendants request that the court take judicial notice of "Exhibit A," attached to their motion. See Defs.' Mem. P. & A. in Supp. Summ. J. (MSJ) at 5:22-24. Exhibit A is a medical record concerning plaintiff apparently authored by defendant Duru based on a visit on December 31, 2004. Defendants request that the court take judicial notice of the exhibit because plaintiff included it with his opposition to a separate motion for summary judgment filed by defendant Weiner. Id.

A court does not take judicial notice of a document, it takes judicial notice of facts "not subject to reasonable dispute." See Fed. R. Evid. 201. Defendants rely on the document for the following facts: plaintiff did not have an appointment but was a walk-in patient; Duru did not have plaintiff's medical records available to review; plaintiff told Duru he experienced chronic pain following his mastectomy and he had received a steroid injection the week before; Duru examined plaintiff and found no lumps; Duru concluded plaintiff might be suffering from mental pressures that could contribute to pain; Duru prescribed plaintiff Naproxen for pain, and referred him to a surgeon and a psychologist, and told plaintiff to come back in one week if his symptoms continued. MSJ at 5:24-6:11. These are not the kinds of facts susceptible of judicial notice. The document is not authenticated by anything in the record; by merely including the document in an omnibus exhibit attached to an earlier filing, plaintiff did not admit all the facts defendants point to. While defendant's request for judicial notice will be denied, the facts plaintiff admits to in his verified amended complaint with respect to his visit with Dr. Duru on December 31, 2004, will be considered, as discussed below.

II. Summary Judgment Standard

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), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575 (9th Cir. 1990).

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 ...


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