The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's motion for summary judgment, filed on February 24, 2011, to which plaintiff filed an opposition on March 16, 2011, after which defendant Stevens filed a reply on March 21, 2011, re-served on March 30, 2011, at plaintiff's most current address, pursuant to this court's order, filed on March 30, 2011.
In his complaint, filed on December 8, 2009, plaintiff alleges that on June 6, 2009, plaintiff went to the A-clinic [at Mule Creek State Prison (MCSP)] and reported having trouble breathing to defendant LVN (Licensed Vocational Nurse) B. Stevens, who was on duty.
Complaint (Cmp.), p. 3. Plaintiff asked for a breathing treatment but Stevens said plaintiff had no order for such a treatment and told plaintiff to fill out a sick call slip and he would receive the order in a few days. Id. Defendant Stevens performed no physical assessment of plaintiff's lungs, oxygen respiration or respiratory rate. Id. Plaintiff asked for his building officer to take him to the TTA,*fn1 but per Officer Pieri and his partner, defendant Stevens called them and told them to deny plaintiff's request for the TTA. Id. Defendant Stevens called RN [Registered Nurse] K. Martinez at TTA and told her not to accept plaintiff. Id., at 3-4.
Plaintiff asked repeatedly to be taken to TTA, but Pieri continued to deny him based on the call from defendant Stevens and on his own assessment of plaintiff's condition. Cmp., p. 4. Officer Pieri ordered plaintiff to lock up at about 5:30 p.m. Id. Plaintiff continued to seek medical attention throughout the third watch shift, even going "man down." Id.
On June 7, 2009, at approximately 1:00 a.m., during first watch, when plaintiff asked a correction officer making rounds for medical attention, plaintiff was taken to TTA for chest pain and shortness of breath. Cmp., p. 4. The TTA RN called Dr. Soltanian who ordered a breathing treatment and told the RN to have plaintiff transported by ambulance to San Joaquin Hospital to rule out a cardiac event. Id.
Plaintiff alleges that he was subjected to unnecessary physical pain and suffering by defendant Stevens who could simply have notified the on-call physician to request and receive the appropriate treatment order. Cmp., p. 4. Plaintiff seeks money damages, including punitive, for his needless physical and emotional suffering. Id., at 3-4.
Motion for Summary Judgment
Defendant Stevens moves for summary judgment on the grounds that 1) plaintiff failed to respond timely to defendant's requests for admission and thus are deemed admitted pursuant to Fed. R. Civ. P. 36(a)(3); 2) that no evidence supports plaintiff's deliberate indifference claims; and 3) there is no triable issue of material fact under 42 U.S.C. § 1983. Notice of Motion for Summary Judgment, pp. 1. These grounds are compressed within the Memorandum of Points and Authorities in support of the Motion for Summary Judgment (hereafter, MSJ) to two: 1) that plaintiff admits that defendant Stevens did not violate his constitutional rights and 2) there is no evidence to support plaintiff's claims of deliberate indifference. MSJ, pp. 1-11.
Legal Standards for Summary Judgment under Rule 56
Summary judgment is appropriate when it is demonstrated that there exists "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, 106 S. Ct. 2548, 2553 (1986) (quoting Fed. R. Civ. P. 56(c)). "[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. See id. at 322, 106 S. Ct. at 2552. "[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, 106 S. Ct. at 2553.
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. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). In attempting to establish the existence of this 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 the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11, 106 S. Ct. at 1356 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, 106 S. Ct. 2505, 2510 (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 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, 106 S. Ct. at 1356 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the 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, 106 S. Ct. at 1356. 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 587, 106 S. Ct. at 1356 (citation omitted).
On February 25, 2010, the court advised 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, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). The above advice would, however, seem to be unnecessary as the Ninth Circuit has held that procedural requirements applied to ordinary litigants at summary judgment do not apply to prisoner pro se litigants. In Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010), the district courts were cautioned to "construe liberally motion papers and pleadings filed by pro se inmates and . . . avoid applying summary judgment rules strictly." Id. at 1150. No example or further definition of "liberal" construction or "too strict" application of rules was given in Ponder suggesting that any jurist would know inherently when to dispense with the wording of rules. Since the application of any rule which results in adverse consequences to the pro se inmate could always be construed in hindsight as not liberal enough a construction, or too strict an application, it appears that only the essentials of summary judgment, i.e., declarations or testimony under oath, and presentation of evidence not grossly at odds with rules of evidence.
Plaintiff expressly does not dispute a number of defendant Stevens' undisputed facts (Memorandum of Points and Authorities in support of Motion for Summary Judgment (MSJ) (docket # 37-1), pp. 2-5, defendant's undisputed material facts (DUF)(docket # 37-2), pp. 1-11; plaintiff's Opposition (Opp.) (docket # 38), p. 3, averring that he does not contest the following). In addition, at least one fact he purports to dispute he mis-identifies or otherwise fails to do so which is noted in the following: 1. Defendant Stevens is a licensed vocational nurse (LVN) with the California Department of Corrections and Rehabilitation (CDCR) at Mule Creek State Prison (MCSP). 2. Stevens has been has been employed and held the position of licensed vocational nurse, with the CDCR at MCSP since February 14, 2007. 3. A nebulizer is a device used to administer medication in the form of a mist inhaler into the lungs of patients with respiratory distress. 4. The nebulizer changes liquid medicine into fine droplets (in aerosol or mist form) that are inhaled through a mouthpiece or mask. 5. Nebulizers can be used to deliver bronchodilator (airway-opening) medicines such as albuterol. 6. Albuterol is a prescribed medication used to prevent and treat wheezing, difficulty breathing and chest tightness caused by lung diseases such as asthma and chronic obstructive pulmonary disease (COPD; a group of diseases that affect the lungs and airways). 7. Albuterol works by relaxing and opening air passages to the lungs to make breathing easier. 8. A nebulizer is a device used to administer medication in the form of a mist inhaler into the lungs of patients with respiratory distress.*fn2 9. During an episode of respiratory distress, airways to the lungs narrow due to increased inflammation and breathing becomes laborious. 10. Albuterol nebulizer treatment can be used to relax the airways and to return normal breathing patterns. 11. Only a licensed physician may prescribe albuterol nebulizer treatment. 16. If upon physical assessment, the LVN determines that the inmate is in respiratory distress, and the inmate has an existing order for nebulizer treatment, then the LVN may provide the inmate with the nebulizer treatment. 19. Among defendant Stevens' duties on June 6, 2009 was to work the A-Facility Clinic window and pass out medication to inmates. 25. Plaintiff was able to talk clearly and make his needs known verbally. 26. Defendant Stevens obtained plaintiff's CDCR number and looked up his medical history in the clinic computer. 27. The search revealed that plaintiff had prescriptions for two inhalers which he was allowed to carry on his person, but there were no orders for albuterol treatment. 28. Defendant Stevens cannot provide an inmate with albuterol treatment without a physician's order. 36. Plaintiff alleges that at approximately 5:30 p.m. on June 6, 2009, he went to the A-yard clinic because he was having trouble breathing. 37. At 6:10 p.m., Officer Pieri checked on plaintiff. 38. Pieri observed that plaintiff was standing in his cell, alert, and talkative. 39. Plaintiff talked at great length to Pieri regarding Pieri denying him medical access. 40. There is an inmate grievance system at MCSP. 44. On July 23, 2010, defendant Stevens served plaintiff with requests for admission and interrogatories. 45. The admission requests were based on allegations made in the complaint and were designed to be, and were, accompanied by interrogatories. 46. The interrogatories were designed to elicit particular facts plaintiff had to support his claims against defendant Stevens, and to narrow the issues in the suit. 47. On August 31, 2010, plaintiff filed a motion with the court which provided that he declined to answer defendant's first set of admissions. 48. Further, plaintiff's response to all of the interrogatories was merely an objection based on his belief that defendant Stevens*fn3 requests for admission were "invalid." 49. Pursuant to the court's Discovery and Scheduling Order, responses to the requests were due September 6, 2010.
Plaintiff takes issue with the following facts defendant sets forth as undisputed:
12. If an inmate requests nebulizer treatment from an LVN at Mule Creek, the LVN must first physically assess the inmate for symptoms of respiratory distress. MSJ DUF (docket #37-2), Defendant's support for DUF 12 is a declaration by the MCSP director of nursing employed by CDCR, M. Brady, at ¶ 4 (docket # 37-6). Plaintiff appears to be asserting more as his own undisputed fact, rather than simply disputing DUF 12, that defendant Stevens never performed a physical assessment and cites as evidence in dispute defendant's supplemental response to plaintiff's interrogatory # 4. Opp., p. 8 & Exhibit (Ex.) C (pp. 24-25). In a supplemental response to plaintiff's question as to whether the defendant had performed a complete medical evaluation of plaintiff on June 6, 2009, defendant offered the following, without waiving asserted objections:
Responding party performed a complete medical assessment on plaintiff, given the plaintiff's request to use a nebulizer. She performed a visual inspection of plaintiff, and she observed that plaintiff was not displaying the usual signs of respiratory distress. Plaintiff's lips were not blue or dusky, his color was normal, he walked normally, and stood without support. No wheezing was heard when plaintiff breathed or ...