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Herman Tiemens, Jr v. R.L. andreasen

February 16, 2011



Plaintiff is a prisoner proceeding without counsel in a civil rights action brought under 42 U.S.C. § 1983. On July 20, 2010, defendants Andreasen and Khoury moved for summary judgment. Dckt. No. 27; see Fed. R. Civ. P. 56. Plaintiff seeks an extension of time to file a "reply" to defendants' reply to his opposition to the motion. Dckt. No. 39. That request is denied. In addition, for the reasons that follow, the undersigned recommends that the motion for summary judgment be granted.

I. Motion for Extension of Time

Plaintiff seeks an extension of time to file a "reply" to the defendants' reply to plaintiff's opposition to their motion for summary judgment (essentially, a sur-reply). Dckt. No. 39. The Federal Rules of Civil Procedure and the Local Rules of this court provide only for the filing of the motion, plaintiff's opposition, and defendant's reply -- no provision is made for an additional sur-reply by plaintiff. Plaintiff has not provided the court with good cause to depart from this procedure. Fed. R. Civ. P. 56(c); E.D. Cal. R. 230. Accordingly, the motion for an extension of time will be denied.

II. Summary Judgment Procedure

Summary judgment is appropriate when it is demonstrated that there exists "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). 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." 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). 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., 477 322. 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. 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 August 7, 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).

III. Background

The following facts are undisputed unless otherwise noted:

At all times relevant to this action, plaintiff was incarcerated at the California Medical Facility ("CMF"). Dckt. No. 6, Am. Compl.; Defs.' Stmt. of Undisp. Facts ("Defs.' SUF") 1; Pl.'s "Statement of Disputed Facts" ("Pl.'s SDF") 1. In 1996, plaintiff suffered a major heart attack that required open heart surgery. Defs.' SUF 1; Pl.'s SDF 4. In 2006, plaintiff received angiograms at Queen of the Valley Hospital ("QVH") in Napa. Defs.' SUF 2; Pl.'s SDF 5. While being treated at QVH, plaintiff complained that he was suffering side effects from the medication Isosorbide, which he had been taking since 2001 as a preventative against another heart attack. Defs.' SUF 3, 10, 11; Pl.'s SDF 6, 12. Defendants characterize the complained-of side effects as "upset stomach" and "nausea." Defs.' SUF 3; Defs.' Mem. of P. & A. at 13. In his complaint, plaintiff similarly characterized the side effects as "nausea" and becoming "over-heated." Am. Compl. at 3. However, in opposing the motion for summary judgment, plaintiff characterizes the side effects as "hives," "bleeding" of ulcers in his esophagus and lower stomach, and "chronic pain." Pl.'s SDF 6, 11. In his communications with prison staff prior to the filing of this suit, plaintiff characterized the side effects as "severe sweating and heating," "severe sour stomach all the time and stomach cramps," being "good and sick," "over heating," coming "unglued," and acid reflux. Am. Compl. at 5, 9, 11, 12, 14.

To address the side effects, medical staff at QVH (according to plaintiff, a Dr. Dassah), told plaintiff to take the medication with ice chips, snacks, and pudding. Pl.'s SDF 3; Defs.' SUF 6. Plaintiff characterizes this advice as a written medical prescription for ice chips, snacks, and pudding, but has not provided the court with a copy of the prescription itself. Pl.'s SDF 6, 7.

According to plaintiff, when he returned to CMF from the hospital, he was examined by a nurse and defendant Andreasen. Pl.'s SDF 7. Plaintiff claims that defendant Andreasen informed him that "they do things differently at CMF" and that he would not order that ice chips, snacks, and pudding be provided to plaintiff with the Isosorbide. Id. Plaintiff states that both defendants informed him that they were in charge of "prescribing medical orders" at CMF and, due to budget constraints, they would not order the ice chips, snacks, and pudding for plaintiff. Pl.'s SDF 8. Plaintiff further claims that defendant Andreasen made daily routine check-ups on plaintiff. Pl.'s SDF 11. Defendants somewhat dispute that they were personally involved in plaintiff's care in the manner described by plaintiff. According to defendants, defendant Andreasen has never been plaintiff's primary care physician and never saw plaintiff following plaintiff's administrative appeal regarding the denial of ice chips, snacks, and pudding. Defs.' SUF 8. Defendants do not address plaintiff's claim that defendant Andreasen examined him upon his ...

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