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 is the motion for summary judgment filed by defendants Duc and Lampkin. (Dkt. No. 54.) Plaintiff filed an opposition on October 8, 2010.*fn1
(Dkt. No. 59.) Defendants filed a reply on October 13, 2010. (Dkt. No. 61.) As explained more fully below, the court recommends that defendants' motion for summary judgment be granted.
This case is proceeding on the amended complaint, filed January 5, 2009. (Dkt. No. 23.) Plaintiff alleges that Dr. V. Duc and Correctional Officer Lampkin were deliberately indifferent to his serious medical needs because Dr. Duc refused to provide plaintiff with a medical hold preventing plaintiff's transfer to a different institution, and Officer Lampkin refused to inquire whether plaintiff should have a medical hold in light of his recent eye surgery and failed to insure plaintiff's medications and eye patches were transported with him to the new institution, allegedly ultimately resulting in another detachment of plaintiff's retina and loss of eyesight.
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.
Consequently, 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 such a 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 January 18, 2008, 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. 10); 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") are either not disputed by plaintiff or defendants, or, following the court's review of the evidence submitted, have been deemed undisputed:
1. At the time the instant allegations occurred:
a. Plaintiff was a California prisoner housed in Facility C at the California State Prison -- Sacramento.
b. Defendant Lampkin was a floor correctional officer, and defendant Dr. Duc was a physician; both defendants were employed at California State Prison -- Sacramento.
2. Plaintiff was hit in the right eye with a rock when he was about five years old, which plaintiff recalls caused hemorrhaging. (Dkt. No. 54 at 13.) Dr. Park opined that previous eye trauma can predispose a patient like plaintiff to cataracts and early onset of retinal detachments. (Dkt. No. 54-5 at 75-76.)
3. In 2002, plaintiff had cataract surgery for blurred vision in his right eye. (Dkt. No. 54-4 at 15-16.) Dr. Park stated that "having had cataract surgery . . . may put you at a slightly increased risk for another recurrent retinal detachment." (Dkt. No. 54-5 at 74.)
4. Plaintiff was nearsighted and began wearing glasses when he was five years old. (Dkt. No. 54 at 14.) Plaintiff has lattice retinal degeneration in both eyes. (Dkt. 54-5 at 75.) Although Dr. Park was unaware that plaintiff was nearsighted, Dr. Park opined that "lattice retinal degeneration tends to be more common in people who are very nearsighted." (Id.)
5. On October 18, 2005, a classification committee reviewed plaintiff's program. Before the hearing, plaintiff had asked to be transferred to Calipatria State Prison. The committee recommended plaintiff's transfer to Calipatria State Prison or the California State Prison -- Los Angeles County because of population pressures, and referred plaintiff to a classification services representative for approval of the transfer.
6. On October 25, 2005, plaintiff noticed his vision was blurry and thought that the cataract in his right eye might be coming back, but plaintiff was not concerned because he could still see.
7. On October 26, 2005, a classification services representative approved plaintiff's transfer to Calipatria State Prison.
8. The morning of October 26, 2005, plaintiff woke up seeing black spots with no vision at all in his right eye.
9. Plaintiff went to the Facility C medical clinic and told a nurse he could not see out of his eye. Plaintiff was taken to see Dr. Duc who had plaintiff rushed to the University of California Medical Center -- Davis Medical Center ("UCDMC").
10. At UCDMC, plaintiff was seen by Dr. Park, a Board-certified ophthalmologist. Plaintiff complained of blurry and hazy vision in his right eye since the previous evening that had worsened in the morning, that he saw "bubbles," and had only a small window of vision in that eye. Plaintiff had no pain, and had not experienced any trauma. Dr. Park found that plaintiff's corrected vision with glasses was 20/60 in the right eye, which was fairly good, and 20/20 in the left eye. Dr. Park diagnosed a retinal detachment in the right eye with multiple retinal holes in the left eye. Plaintiff had lattice retinal degeneration which means he had thin patches, which predisposed him to retinal detachment. Dr. Park concluded that plaintiff should have surgery to repair the retinal detachment in the right eye, and laser treatment of the left eye to minimize the risk of a retinal detachment in that eye. Emergency surgery was scheduled for the following day.
11. On October 27, 2005, Dr. Park performed (1) pars plana virectomy, sclera buckle, air-fluid exchange, endolaser photocoagulation, and eighteen-percent SFG gas injection on the right eye, and (2) indirect retinal photocoagulation on the left eye. In laymen's terms, Dr. Park removed the jelly that fills the back of the eye because the vitreous jelly tugs on the retina and can cause future detachments, and because plaintiff had some bleeding into the vitreous jelly, which prevented Dr. Park from identifying all the pathology in the eye. (Dkt. No. 54-5 at 24.) Once the jelly was removed, Dr. Park identified the retinal tears and holes that had resulted in the detached retina, flattened the retina by injecting a gas bubble in the eye, and sealed the retinal holes with laser treatment. (Id.) Dr. Park then wrapped the right eye with a plastic band, called a sclera buckle, to give the eye some protection from future detachment, and then performed laser treatment on the thin areas and retinal holes of the left eye. (Id.)
12. About 70 to 90 percent of surgeries for retinal detachment of the kind performed on plaintiff's right eye are successful, depending on whether the surgery is for initial detachment, and whether the patient has other complicating factors. (Dkt. No. 54-5 at 25.) The success rate for retinal laser prophylactics of the kind performed on plaintiff's left eye is about 95 percent.
13. Plaintiff's prospect for successful surgery was good because plaintiff's "initial presenting vision was quite good," it was an initial detachment, and Dr. Park didn't see any scar tissue. (Dkt. No. 54-5 at 27.) But plaintiff's pre-existing conditions put him "at increased risk for another [retinal] detachment" . . . [due to] "the fact [plaintiff] had a lot of thin areas with multiple retinal holes and tears in both eyes." (Dkt. No. 54-5 at 27.)
14. The success of surgery in which a gas bubble is placed in the eye also depends on how well the patient follows post-surgery care instructions, which include lying face-down and not on one's back; not traveling to high attitude locations which can expand the gas bubble; and avoiding bending and straining, which can cause bleeding to the eye. (Dkt. No. 54-5 at 26.)
15. Before plaintiff was discharged from the hospital on October 27, 2005, Dr. Park provided post-surgery instructions, including lying face down or on the right side as much as possible so that the gas bubble would maintain pressure and keep the retina attached, and ordered Tylenol #3, one tablet every four to six hours, as needed, for pain, with a follow-up the next morning. Dr. Park told plaintiff that as long as the retina stayed attached, there was a good chance he would keep his vision, and that he might actually have some vision improvement. (Id.) Dr. Park informed plaintiff "he may need down the line to get a new pair of glasses because the surgery does change the prescription in the eye before we know what his final vision is going to be." (Id.) Dr. Park explained she "usually tell[s] [her] patients that . . . we may not know what the final vision in that eye is going to be for at least three months." (Id.) Dr. Park did not tell plaintiff that eyeglasses would eliminate his double vision. (Dkt. No. 59-1 at 3.)
16. Upon return to the prison, plaintiff saw Dr. Duc who told him there were no available beds in the infirmary, so plaintiff was returned to his cell. Dr. Sihota ordered Tylenol No. 3 (acetaminophen/codeine), two tablets, three times a day, for 24 hours, and Phenergan, 50 mg. IM for nausea and vomiting, and an appointment for a follow-up the next morning with Dr. Park.
17. Dr. Park saw plaintiff the day after surgery, October 28, 2005, for follow-up and noted that the right eye retina was attached, that plaintiff had a slight elevation of intraocular pressure that was not a concern, and that plaintiff was doing well. At this appointment, Dr. Park was looking to see if there was an infection, whether the retina was still attached, whether intraocular pressure from the gas bubble was too high, and to go over pain management and prescribe medications. Plaintiff did not have an infection, the retina was still attached, and the intraocular pressure was slightly high, but not of concern. Dr. Park prescribed: Darvocet-N, 100 mg., one tablet every six hours, as needed, for pain for two weeks; Maxitrol (neomycin/ polymyxin/dexamethasone), an eye ointment containing cortisone to make the eye more comfortable; antibiotics to prevent infection, to be applied three times a day for two weeks; and Atropine ointment to dilate the eye and make it more comfortable, to be applied to the right eye three times a day. Dr. Park told plaintiff he might have double vision after his eye healed. (Dkt. No. 54-5 at 38; Dkt. No. 54-4 at 33.)
18. Plaintiff returned to prison on October 28, 2005. 19. Medical records indicate that a copy of Dr. Park's post-surgery management plan, with prescribed medications, was received at the prison on October 31, 2005. (Dkt. No. 54-3 at 16.) Dr. Duc saw plaintiff the next day on November 1, 2005. (Id. at 19.) Dr. Duc changed the initial medications he ordered to the ones recommended by Dr. Park (Atropine, Maxitrol, ...