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. This case is proceeding on the original complaint, filed March 9, 2009. Plaintiff alleges that defendants were deliberately indifferent to plaintiff's serious medical needs based on plaintiff's allegations that he was subjected to extended periods of severe back pain when he was not provided appropriate pain medications. Pending before the court is the motion for summary judgment filed by defendants Baca and Newman.*fn1 As explained more fully below, the court recommends that defendant Baca's motion for summary judgment be partially granted, and defendant Newman's motion for summary judgment be granted.
II. Motion for Summary Judgment
Defendants Baca and Newman move for summary judgment on the grounds that there are no genuine issues of material facts and they are entitled to judgment as a matter of law. Plaintiff filed an opposition. No reply was filed.
Neither the complaint nor plaintiff's opposition are verified. Plaintiff provided a declaration, however, the declaration attests to the authenticity of the appended 602 appeals, medical records and sick call slips. (Dkt. No. 60 at 7.)
A. 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 is met. "The court shall grant summary judgment if the movant shows that there is 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).*fn2
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 then-numbered Fed. R. Civ. P. 56(c).) "Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). 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. Celotex Corp., 477 U.S. 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.
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(c); 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 August 4, 2009, 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. 19); see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
B. Civil Rights Claims Standards
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978) ("Congress did not intend § 1983 liability to attach where . . . causation [is] absent."); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
For purposes of the instant motion for summary judgment, the court finds the following facts undisputed.
1. Plaintiff was in the custody of the California Department of Corrections and Rehabilitation ("CDCR") at the Deuel Vocational Institution ("DVI") between August of 2007 and June of 2008.
2. Christina Baca was the Health Care Manager at DVI while plaintiff was housed at DVI. Defendant Baca is not a medical doctor. (Pl.'s Deposition ("Dep.") at 46:15-19.)
3. In her capacity as Health Care Manager, defendant Baca responds to medical appeals. (Pl.'s Dep. at 46:20-21.)
4. Following his arrival at DVI, plaintiff was seen by Dr. Mendoza who, in response to plaintiff's complaints of severe back pain, prescribed plaintiff a thirty day supply of Morphine. The Morphine prescription helped, but did not alleviate plaintiff's back pain.
5. In anticipation of the need to renew the Morphine prescription, plaintiff filled out a sick call slip and was seen by Michelle Street, Physician's Assistant ("P.A."), in August of 2007.
6. Plaintiff's visit with defendant Street escalated into an argument; defendant Street ordered plaintiff to leave. (Pl.'s Dep. at 51.) Defendant Street did not renew plaintiff's prescription for Morphine. Plaintiff later learned, through an Olsen Review of his medical records, that defendant Street had noted her belief that plaintiff was drug-seeking. (Pl.'s Dep. at 52.)
7. Immediately after seeing defendant Street, plaintiff completed a sick call slip. (Pl.'s Dep. at 53:7.) Plaintiff was seen "quite a few times" thereafter by nurses or physician's assistants, but he was not prescribed any medications. (Pl.'s Dep. at 53:8-14; 59:19-23.)
8. The nurses referred plaintiff to Dr. Newman, but plaintiff did not see Dr. Newman until some time between September and October 2007. (Pl.'s Dep. at 53:21-24.)*fn3
During this visit, Dr. Newman performed a physical examination, including range of motion tests to determine plaintiff's pain levels, ordered x-rays, and prescribed physical therapy and thirty day supplies of Vicodin and Neurontin in response to plaintiff's complaints of pain. (Pl.'s Dep. at 53-57.)
9. Prior to the expiration of plaintiff's pain medication prescription, plaintiff filled out sick call slips to see medical staff to have the pain medication prescription renewed. (Pl.'s Dep. at 58.)
10. Plaintiff is a chronic care patient. (Pl.'s Dep. at 61.) Plaintiff confirmed that the chronic care clinic would call the patient in for an appointment "every thirty days or thereabouts, . . . [the clinic] would find out how you're doing, what your pain level is, how the pain medication is working . . . and discuss renewal of . . . medications" if needed. (Id.)
11. During the alleged two month period when plaintiff was allegedly not receiving his pain medications, if plaintiff presented at chronic care clinic and was assigned to see defendant Street, plaintiff refused to see defendant Street, left the clinic and filled out a sick call slip. (Pl.'s Dep. 59-61.)*fn4
12. Plaintiff saw defendant Newman four or five times while plaintiff was housed at DVI. (Pl.'s Dep. at 54.) Plaintiff saw defendant during "a few" of plaintiff's chronic care appointments, and defendant Newman "may ...