The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 59)
CLERK OF COURT IS DIRECTED TO ENTER JUDGMENT AND CLOSE ACTION
Plaintiff Ricky W. James ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint against Defendants M. Saenz, E. Johnson, and J. Wilbur for violation of the Eighth Amendment. On March 5, 2010, Defendants filed a motion for summary judgment. Defs.' Mot. Summ. J., Doc. 59. On March 29, 2010, Plaintiff filed his opposition. Pl.'s Opp'n, Docs. 63, 64. *fn1 No reply was timely filed. The matter is submitted pursuant to Local Rule 230(l).
II. Summary Judgment Legal 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 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.
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.
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. 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 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. 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,
Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248
(1986); Thifty Oil Co. v. Bank of Am. Nat'l Trust & Sav.
Ass'n , 322 F.3d 1039, 1046 (9th Cir. 2002); T.W.
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, Long v. County of Los Angeles ,
442 F.3d 1178, 1185 (9th Cir. 2006); 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 a motion for summary judgment, 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, Anderson , 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita , 475 U.S. at 587 (citing United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962) (per curiam)). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which an inference may be drawn. 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 586-87 (citations omitted).
III. Undisputed Facts *fn2
Plaintiff was incarcerated at California State Prison-Corcoran ("CSP-COR") during the relevant time in this action.
Defendant Saenz is a Licensed Vocational Nurse ("LVN") employed by the CDCR at CSP-COR. An LVN is an entry level health professional. Part of her training as an LVN includes training in emergency medical treatment. She is not qualified to perform medical examinations or prescribe medications. She is not qualified to evaluate dental conditions, including what may be a dental emergency. On June 11, 2006, in accordance with her emergency medical training, Defendant Saenz evaluated whether Plaintiff had a medical emergency based on his claims that he had an abscessed tooth. *fn3 Based on Defendant Saenz's training, she determined that an abscessed tooth is not a life threatening emergency. Therefore, she did not provide Plaintiff with emergency medical treatment or call for emergency medical treatment on June 11, 2006. She therefore did not examine Plaintiff's mouth. She did contact the dental department and passed along Plaintiff's request for emergency dental treatment. *fn4 Based on her request, the dental department made an appointment for Plaintiff for June 21, 2006. Plaintiff did not appear for that appointment, and he was rescheduled for the next available appointment. *fn5 Defendant Saenz contends that she provided Plaintiff with appropriate care under the standard of care for a LVN in her position. Plaintiff contends that he was unaware of his appointment with the dental office, and that Defendant Saenz was incompetent in evaluating and reporting Plaintiff's dental issues. Plaintiff contends he was not seen by a dentist until after he filed an inmate grievance.
Defendant Wilbur is a Doctor of Dental Surgery ("DDS"). As a DDS he is qualified to prescribe medication. As a DDS working for CDCR, Defendant Wilbur contends that he may not prescribe nutritional supplements. Defendant Wilbur contends that at CDCR institutions, nutritional supplements must be prescribed by medical staff. *fn6 Defendant Wilbur saw Plaintiff a total of three times. Each time Defendant Wilbur saw Plaintiff, Defendant contends that he treated him to the best of his ability and provided him with appropriate dental care within the standard of care of a dentist in his position. *fn7 On the first visit with Plaintiff on July 17, 2006, Defendant Wilbur contends that Plaintiff did not have an abscessed tooth, only a loose tooth caused by chronic periodontal disease. *fn8 His mouth was not infected. The visit was not a dental emergency. Plaintiff contends that Defendant Wilbur confirmed that the tooth was abscessed. (Pl.'s P. &. A. Support Opp'n 2, Doc. 64.).
Defendant Wilbur extracted Plaintiff's tooth on July 17, 2006. Defendant Wilbur contends that Plaintiff did not have a dental emergency, while Plaintiff contends it was. Defendant Wilbur contends that normally, pain is immediately relieved by the removal of a loose tooth caused by periodontal disease. Defendant Wilbur did not believe that Plaintiff needed pain medication because pain from a loose tooth should subside once the sore tooth is removed. Defendant Wilbur reviewed Plaintiff's medical records and found that Plaintiff was taking Hydrocodone, an opiate-based pain medication, three times a day at 500 mg. *fn9 Plaintiff was actually taking a hydrocodone/APAP pain medication at 5/500 mg, respectively. Defendant Wilbur contends that even if the extraction of his tooth did not immediately relieve Plaintiff's tooth ache, Defendant Wilbur found that 500 mg of hydrocodone three times per day should have been more than sufficient to relieve any periodontal pain - even if Plaintiff was taking the pain medication for another condition.
Because Plaintiff was already receiving significant pain medication, Defendant Wilbur did not believe it would be appropriate to prescribe him more. *fn10 Defendant Wilbur did not repair Plaintiff's broken dentures because they were beyond repair. Instead, he had Plaintiff sign a dental agreement and began the process for obtaining new dentures for Plaintiff. *fn11
Defendant Wilbur believed that Plaintiff's dental condition should not have prevented him from being able to eat the mechanically soft food served at CSP-COR. *fn12 Moreover, Defendant Wilbur contends that he could not prescribe a soft food diet or liquid nutritional supplement because he could not under CDCR policy. *fn13 Defendant Wilbur did not prescribe him ...