The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel. This action is proceeding on plaintiff's January 9, 2009 amended complaint (dkt. no. 11), but is limited to plaintiff's claims against defendants Koller, Plainer and Ingwerson, and plaintiff's claim alleging that defendants Prater, Shaver and Koenig denied plaintiff a prescribed pillow and new mattress from June 2008 to August 11, 2008. (Dkt. No. 89.) On July 8, 2011, defendants Prater, Shaver and Koenig filed a motion for summary judgment on the latter claim. As explained more fully below, the court recommends that the motion for summary judgment be granted.
I. Motion for Summary Judgment
Defendants Prater, Shaver and Koenig move for summary judgment on the grounds that there are no genuine issues of material facts. Plaintiff filed an opposition, and defendants filed a reply. Plaintiff's request that the court take judicial notice of plaintiff's March 4, 2011 motion and exhibits (dkt. no. 107) is granted. (Dkt. No. 121 at 38.)
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).*fn1
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), impliedly overruled in part on other grounds by Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1577-78 (9th Cir. 1990).
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 November 16, 2009, the court advised plaintiff of the requirements for opposing a motion brought 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 (9th Cir. 1988).
The following undisputed facts are either not disputed by plaintiff or defendants, or, following the court's review of the evidence submitted, have been deemed undisputed:
a. Plaintiff was incarcerated at High Desert State Prison ("HDSP");
b. Defendant C. Prater was a Correctional Officer at HDSP;
c. Defendant D. Shaver was a Correctional Sergeant at HDSP; and
d. Defendant W. Koenig was a Correctional Lieutenant at HDSP.
2. Plaintiff asked defendant Prater for a new mattress.
3. Defendant Prater inquired about a new mattress for plaintiff, but learned that none were available in the living unit.
4. On June 1, 2008, plaintiff filed an appeal complaining that he was not provided a pillow or mattress exchange as required by his medical chrono. (Dkt. No. 121 at 10.)
5. On June 18, 2008, defendant Prater answered plaintiff's grievance for a new mattress and pillow, at the informal level.
6. Defendant Prater stated in his informal response that he did not have access to pillows or mattresses.
7. On July 10, 2008, defendant Shaver interviewed plaintiff for the first level appeal response.
8. During the interview, plaintiff gave defendant Shaver a chrono from Salinas Valley State Prison ("SVSP"), dated 2006, for a new mattress and a pillow.
9. Defendant Shaver informed plaintiff that before HDSP could provide a new mattress and pillow, medical staff needed to first evaluate plaintiff's medical condition to ...