FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff proceeds on his January 29, 2009 second amended complaint in which he alleges, in relevant part, that defendant Cox was deliberately indifferent to his serious medical needs.*fn1 On December 22, 2009, defendant Cox filed a motion for summary judgment on the ground that there is no evidence that he was deliberately indifferent to plaintiff's medical needs.*fn2
Alternatively, defendant contends he is entitled to qualified immunity. For the reasons explained below, the court recommends that defendant's motion be denied.*fn3
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 movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52. "When reasonable minds could differ on the material facts at issue, summary judgment is not appropriate." Nw. Motorcycle Ass'n, 18 F.3d at 1472.
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 the prior language of Rule 56(c), which was amended in 2007 to implement purely stylistic changes). If the moving party meets its initial responsibility, the opposing party must "set out specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e)(2); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must demonstrate -- through evidence in the form of affidavits and/or admissible discovery material -- a factual dispute that is both material (i.e. it affects the outcome of the claim under the governing law) and genuine (i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party).Fed. R. Civ. P. 56(e)(2); Anderson, 477 U.S. at 248-50; Matsushita, 475 U.S. at 586 n.11. 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 Celotex Corp., 477 U.S.at 322. Thus, "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 resolving a summary judgment motion, the court examines the pleadings, the discovery and disclosure materials on file, and any affidavits filed by the parties. Fed. R. Civ. P. 56(c)(2). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in his or her favor. Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587. Nevertheless, it is the opposing party's obligation to produce a factual predicate from which a favorable 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 March 3, 2009, the court informed 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, 955-60 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999) (holding that either the district court or the moving party must inform a pro se prisoner of the requirements of Rule 56), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
The following facts are not disputed by either party or following the court's review of the evidence submitted, have been determined to be undisputed.
On December 30, 2005, plaintiff injured his right hand. Defs.' Mot. for Summ. J., Stmt. of Undisp. Facts in Supp. Thereof ("SUF") 1. A medical report bearing the same date indicates that a nurse was notified of the injury. Defs.' Mot. for Summ. J., Decl. of Cox in Supp. Thereof ("Cox Decl."), Ex. A at CDCR 27. The report was completed by F. Bates, a Medical Technician Assistant. Id. Bates noted a dislocation in plaintiff's right hand. SUF 2.
On January 4, 2006, plaintiff was seen by Dr. James, an emergency room physician, as well as a nurse. Cox Decl., Ex. A at CDCR 84. The nurse noted that an x-ray of plaintiff's hand showed a displaced fracture of the fourth metacarpal, which is commonly referred to as a boxer's fracture. Id.; SUF 5. A physical examination in conjunction with x-rays is necessary to properly diagnose a boxer's fracture. SUF 7. When examining a patient who has suffered this type of fracture, the doctor will usually ask the patient to make a fist in order to determine the extent of the injury. SUF 8. In order to treat a boxer's fracture, the injured hand must be immobilized to minimize pain and further damage. SUF 9. Immobilization of the hand can be achieved through the use of a splint or brace. SUF 10. The nurse noted that plaintiff could make a fist easily, that he had swelling over the dorsum (i.e., the back) of his right hand, and that he was given a posterior splint and ace wrap in order to immobilize his right hand and wrist. SUF 11. Dr. James instructed plaintiff to use the splint. SUF 13. Dr. James noted that plaintiff had an angulated fourth metacarpal fracture with dorsal displacement and ordered an x-ray to be taken that day. SUF 12; Cox Decl., Ex. A at CDCR 84, CDCR 108. Dr. James also wrote plaintiff a two week prescription for Motrin/Ibuprofen to be taken as needed for pain. SUF 14; Pl.'s Decl. in Supp. of Disputed Facts ("Dckt. No. 72") at CDCR 169.
Defendant is a physician and surgeon licensed by the State of California. SUF 15. Defendant's first involvement in the treatment of plaintiff's right hand occurred when he saw plaintiff on January 27, 2006. SUF 23. At this time, plaintiff's fracture was four weeks old and had already started to heal. SUF 24. Plaintiff informed defendant that he had worn a splint for a short period of time after the fracture. SUF 25. A physical examination of plaintiff's right hand revealed no erythema (redness) or lesions (abnormal tissue). SUF 27. However, plaintiff complained of an anatomical malformation in his hand. SUF 26. Defendant noted that there was an anatomical abnormality on the back of plaintiff's right hand in the area of the fourth metacarpal. SUF 28. Defendant determined that this was a protrusion caused by a calcification where the fourth metacarpal was healing. SUF 28. Calcification is typically seen over the area where a fracture is healing or has healed. SUF 29. The x-ray taken of plaintiff's hand on January 4, 2006 was not in plaintiff's chart when defendant evaluated him on January 27, 2006.*fn4
SUF 31. Defendant ordered an x-ray of plaintiff's right hand and noted that plaintiff would be seen in two months to discuss the results of the ...