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 to42 U.S.C. § 1983. This case is proceeding on the original complaint, filed August 27, 2009. Plaintiff alleges that defendants were deliberately indifferent to plaintiff's serious medical needs in connection with the diagnosis and treatment of plaintiff's right shoulder, injured on December 26, 2007. Pending before the court is the motion for summary judgment filed by defendants Lahey, Tan and Traquina.*fn1 As explained more fully below, the court recommends that the motion for summary judgment be granted.
II. Plaintiff's Allegations
In his verified complaint, plaintiff alleges:
1. After plaintiff arrived at the medical annex complaining of shoulder pain on December 26, 2007, defendant Nurse Lahey made plaintiff wait two hours to receive pain medication;
2. On January 22, 2008, plaintiff complained of right shoulder pain. Upon examination by defendant Dr. Tan, Dr. Tan told plaintiff that there was nothing wrong with plaintiff's shoulder; and
3. On or about February 20, 2008, defendant Dr. Traquina failed to provide a clavicle brace, and failed to provide proper medical treatment for plaintiff's broken shoulder.
At his deposition, plaintiff claimed that:
1. On December 26, 2007, when he presented at the medical annex complaining of shoulder pain, plaintiff should have been given pain medication immediately like a regular hospital allegedly would have done. (Dkt. No. 56 at 12-25; 43; 44; & 45.)
2. Defendant Dr. Tan is allegedly responsible because when plaintiff saw Dr. Tan on January 22, 2008, Dr. Tan told plaintiff there was no fracture, but one month later, Dr. Tan responded to the administrative grievance by stating that plaintiff had suffered a fracture. (Dkt. No. 56 at 40-41.)
3. Defendant Dr. Traquina is allegedly responsible because of his involvement in the administrative grievance process, and because Dr. Traquina is the supervisor of medical staff. (Dkt. No. 56 at 36-37; 38-40.)
III. Motion for Summary Judgment
Defendants move for summary judgment on the grounds that there are no genuineissues of material facts and they are entitled to judgment as a matter of law. Plaintiff filed an opposition, and defendants filed a reply. On May 16, 2011, plaintiff was granted leave to file a supplemental opposition. On June 1, 2011, plaintiff filed a supplemental opposition. No supplemental reply was filed.
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 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 December 8, 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).
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 California State Prison in Solano ("CSP-Solano") from 2007 to 2008.
2. Defendant Lahey is a licensed Registered Nurse, employed at CSP-Solano from September 2001 to the present.
3. Defendant Dr. Tan is a licensed physician and surgeon, employed at CSPSolano from January 2008 to the present.
4. Defendant Dr. Traquina is a licensed physician, board-certified in surgery, and is Chief Medical Officer at CSP-Solano since March of 2003.
5. On December 26, 2007, at approximately 8:30 a.m., plaintiff heard three pops in his right shoulder while plaintiff was doing dips in the prison exercise yard. (Dkt. No. 1 at 6, ¶ 13; Dkt. No. 56 at 9, 12.)
6. It took plaintiff approximately ten minutes to get to the medical annex. (Dkt.No. 56 at 12.)
7. After plaintiff arrived at the medical annex, defendant Lahey gave plaintiff a form to fill out, which was completed by another inmate. (Dkt. No. 56 at 11-12.)
8. After the form was completed, defendant Lahey and another inmate helped plaintiff onto a ...