The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the amended complaint filed July 7, 2010, as to defendants Jencks, Douglas and Valentine.
Pending before the court are cross-motions for summary judgment. After carefully considering the record, the undersigned recommends that plaintiff's summary judgment motions be denied and that defendants' summary judgment motions be granted.
II. Legal Standard for Summary Judgment
Summary judgment is appropriate when a moving party establishes that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if . . . there is 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 (1986). "[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. "[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 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.
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 the dispute exists. See Fed. R. Civ. P. 56(e); 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).
A. Background to Summary Judgment Motions
On June 13, 2011, plaintiff filed a ten page motion titled "Notice of Motion for 'Order' of Declaratory Judgment Against Defendant, et al." (Dkt. No. 61.) This motion states plaintiff's claims against defendants, but includes no supporting evidence. In this motion, plaintiff fails to cite any portion of the record in support of his claims.
On June 18, 2011, defendants filed an opposition to plaintiff's June 13, 2011 motion, construing it as a motion for summary judgment. (Dkt. No. 65.) Defendants accurately observe that, if anything, plaintiff's motion is a reiteration of his claims against defendants. Defendants argue that plaintiff, as the moving party, failed to meet his initial burden of demonstrating the absence of a genuine issue of material fact.
The undersigned agrees with defendants that plaintiff's June 13, 2011 "summary judgment motion" is inadequate because it includes only a restatement of his claims with no supporting evidence. In this motion, plaintiff fails to meet his burden of identifying the portions of the record which he believes demonstrate the absence of a genuine issue of material fact. For these reasons, plaintiff's motion filed June 13, 2011, construed as a summary judgment motion, should be denied.
Pursuant to the mailbox rule, on July 18, 2011, plaintiff filed a motion titled "Notice of Motion for Summary Judgment." (Dkt. No. 68.) All pretrial motions, including summary judgment motions, were due on or before July 8, 2011. (See Scheduling Order, Dkt. No. 49.)
In their summary judgment motion, defendants incorrectly identified the date on which plaintiff claimed that defendant Valentine allegedly provided plaintiff with inadequate medical care. (See defendants' summary judgment motion; Dkt. No. 62.) On August 26, 2011, the undersigned granted defendants twenty-one days to file a supplemental summary judgment motion addressing the claim against defendant Valentine based on the date alleged in the amended complaint. (See August 26, 2011 order; Dkt. No. 71.) Because defendants were granted an opportunity to file a supplemental summary judgment motion, in the interests of justice and judicial economy, the undersigned also found that plaintiff's July 14, 2011 summary judgment motion was timely filed. (Id.)
On September 15, 2011, defendants filed a supplemental summary judgment motion addressing the claims against defendant Valentine. (Dkt. 72.) On September 15, 2011, defendants also filed an opposition to plaintiff's second summary judgment motion. (Dkt. No. 76.)
This action is proceeding on the amended complaint filed July 7, 2010 as to defendants Jencks, Douglas and Valentine. (Dkt. No. 27.)
Plaintiff alleges that on August 21, 2009, he suffered serious injuries as a result of a car accident. Plaintiff alleges that he had surgery at the U.C.D. Medical Center as a result of the injuries he suffered in the car accident. On September 18, 2009, plaintiff was arrested by Yolo County sheriff's deputies and taken to jail. Plaintiff alleges that the arresting officer used excessive force by grabbing his broken arm and ripping off his knee brace. When plaintiff arrived at the jail, he was allegedly bleeding and in pain.
Plaintiff alleges that after being booked at the jail, he was placed in administrative segregation. Plaintiff alleges that on September 19, 2009, defendant Jencks, the Chief Medical Officer Administrator of the jail, refused to process his requests for pain medications (i.e., oxycodone and percocet) and refused to change plaintiff's bandages.
Plaintiff alleges that on September 21, 2009, he saw defendant Dr. Douglas at the jail. Plaintiff claims that defendant Douglas told plaintiff that he would not provide plaintiff with any of the pain medication prescribed by doctors at the U.C.D. Medical Center, i.e. oxycodone and dilantin, where he had previously had surgery. Plaintiff also claims that defendant Douglas refused to change his dressings for his skin graft. Instead, defendant Douglas allegedly prescribed Vicodin even though plaintiff's chart stated that he was allergic to Vicodin. Plaintiff claims that defendant Douglas knew that plaintiff was allergic to Vicodin.
Plaintiff claims that on November 20, 2009, defendant Valentine refused to treat plaintiff for a staph infection. As a result, plaintiff allegedly suffered pain and injuries to his left arm.
As legal claims, plaintiff alleges violations of the Eighth Amendment as well as negligence in violation of state law.
C. Legal Standard for Eighth Amendment Claim
In order to state a § 1983 claim for violation of the Eighth Amendment based on inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). To prevail, plaintiff must show (1) that his medical needs were objectively serious; and (2) that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299 (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). The requisite state of mind for a medical claim is "deliberate indifference." Hudson v. McMillian, 503 U.S. 1, 4 (1992).
A serious medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Indications that a prisoner has a serious need for medical treatment are the following: the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. See, e.g., Wood v. Housewright, 900 F.2d 1332');">900 F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989); McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court defined a very strict standard which a plaintiff must meet in order to establish "deliberate indifference." Of course, negligence is insufficient. Farmer, 511 U.S. at 835. However, even civil recklessness (failure to act in the face of an unjustifiably high risk of harm which is so obvious that it should be known) is insufficient. Id. at 836-37. Moreover, it is not sufficient that a reasonable person would have known of the risk or that a defendant should have known of the risk. Id. at 842.
It is nothing less than recklessness in the criminal sense-subjective standard-disregard of a risk of harm of which the actor is actually aware. Id. at 838-42. "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. Thus, a defendant is liable if he knows that plaintiff faces "a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847. "[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. at 842. If the risk was obvious, the trier of fact may infer that a defendant knew of the risk. Id. at 840-42. However, obviousness per se will not impart knowledge as a matter of law.
Also significant to the analysis is the well established principle that mere differences of opinion concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
However, a physician need not fail to treat an inmate altogether in order to violate that inmate's Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate indifference in a particular case. Id.
Additionally, mere delay in medical treatment without more is insufficient to state a claim of deliberate medical indifference. Shapley v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 408 (9th Cir. 1985). Of note, although the delay in medical treatment must be harmful, there is no requirement that the delay cause "substantial" harm. McGuckin, 974 F.2d at 1060, citing Wood v. Housewright, 900 F.2d 1332, 1339-40 (9th Cir. 1990), and Hudson, 503 U.S. at 4-6. A finding that an inmate was seriously harmed by the defendant's action or inaction tends to provide additional support for a claim of deliberate indifference; however, it does not end the inquiry. McGuckin, 974 F.2d 1050, 1060 (9th Cir. 1992). In summary, "the more serious the medical needs of the prisoner, and the more unwarranted the defendant's actions in light of those needs, the more likely it is that a plaintiff has established deliberate indifference on the part of the defendant." McGuckin, 974 F.2d at 1061.
Superimposed on these Eighth Amendment standards is the fact that in cases involving complex medical issues where plaintiff contests the type of treatment he received, or lack thereof, expert opinion will almost always be necessary to establish the necessary level of deliberate indifference. Hutchinson v. United States, 838 F.2d 390 (9th Cir. 1988). Thus, although there may be subsidiary issues of fact in dispute, unless plaintiff can provide expert evidence that the treatment he received equated with deliberate indifference thereby creating a material issue of fact, summary judgment should be entered for the defendant. The dispositive question on this summary judgment motion is ultimately not what was the most appropriate course of treatment for plaintiff, but whether the failure to timely give a certain type of treatment was, in essence, criminally reckless.
As stated above, plaintiff alleges that on September 19, 2009, defendant Jencks refused to process plaintiff's requests for pain medications (oxycodone and percocet) and refused to change plaintiff's bandages.
Defendants move for summary judgment as to defendant Jencks on the grounds that as a Program Manager, she did not handle any requests for medication by plaintiff nor provide any "hands on" patient care. In support of their motion, defendants refer to the declaration of defendant Jencks. In relevant part, defendant Jencks states,
1. I am a licensed Registered Nurse, licensed by the State of California as an R.N. in 2008; I am employed as the Program Manager by the California Forensic Medical Group, Inc. ("CFMG"), the contract provider of health care services at the Yolo ...