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. Pending before the court are cross-motions for summary judgment by plaintiff (Dkt. No. 54), and by defendants Lyons, Echevarria, and Esberto*fn1 (hereafter "defendants") (Dkt. No. 58). Plaintiff filed an opposition on August 31, 2011. (Dkt. No 65.) Defendants filed an opposition on November 4, 2011. (Dkt. No. 74.) Plaintiff filed a reply on December 1, 2011, and a correction to the reply on December 7, 2011. (Dkt. Nos. 75, 76.) As set forth below, this court recommends that defendants' motion for summary judgment be granted, and plaintiff's motion for summary judgment be denied.
This case is proceeding on the original complaint,*fn2 filed September 30, 2009. (Dkt No. 1.) Plaintiff alleges that defendants were deliberately indifferent to his serious medical needs because they denied and delayed him access to medical treatment. (Id.)
Plaintiff's complaint contains the following allegations:
Plaintiff alleges that on the night of June 30, 2007, while housed in administrative segregation ("ad seg") at California Medical Facility in Vacaville ("CMF"), after eating the evening meal, plaintiff began to feel nauseous. On July 1, 2007, at breakfast, plaintiff ate a small amount of food, and began to vomit. Plaintiff's condition worsened throughout the day, and included severe stomach pain, cramping, nausea and diarrhea, intense headaches, dizziness, chills, hot and cold flashes and uncontrollable vomiting. (Id. at 7.) Plaintiff informed the ad seg correctional officers that plaintiff contracted a food borne illness and requested to see the duty nurse; plaintiff was told that no one was on duty. No one checked on plaintiff's well-being in ad seg that day, despite allegedly high temperatures (100 degrees outside; 90 degrees inside cell). (Id. at 10.)
On July 2, 2007, plaintiff told defendant Echevarria that plaintiff was vomiting all night with explosive diarrhea, could barely get out of bed, could not eat, did not want breakfast or lunch, and needed to see a nurse and get medical attention. Plaintiff alleges Echevarria closed the food tray slot but failed to summon the nurse or arrange medical care. Plaintiff could not hold down liquids that day. No one checked on plaintiff on July 2, 2007, despite high temperatures.
From July 2, 2007 to July 3, 2007, defendant Lyons worked the first watch shift at ad seg. Around 2:00 a.m. on July 3, 2007, plaintiff's illness became worse, including severe head pain and explosive diarrhea. Plaintiff began having dry heaves, which plaintiff claims caused him to black out and lose consciousness. When plaintiff came to, he was on the cell floor, had soiled himself with diarrhea, and called "man down" to defendant Lyons, who found plaintiff sitting on the floor by the toilet. (Id. at 9.) Plaintiff told Lyons what happened, and Lyons left, stating she was informing the ad seg First Watch Sergeant. However, upon return, Lyons allegedly told plaintiff that they decided plaintiff did not require emergency medical care, there was no doctor or nurse available, and no officer could be taken off assigned to duties to escort and stay with plaintiff in the B-1 medical clinic.
Plaintiff removed his soiled boxers and placed them in a brown paper bag.*fn3 Plaintiff wrapped himself in a sheet, suffering from hot and cold chills, and still unable to drink fluids. Correctional Officer Ramirez, working ad seg breakfast, noticed plaintiff in distress, and informed defendant Esberto, R.N., of plaintiff's emergency medical need. Plaintiff told Esberto plaintiff had been extremely sick for the past two days, with constant diarrhea, inability to eat or drink, and a loss of consciousness the prior evening. Plaintiff alleges he told Esberto that plaintiff believed he contracted a food-borne illness because of the unsanitary conditions in ad seg. Esberto did not summon emergency medical help, but instead removed plaintiff from his cell, hand-cuffed, and put plaintiff in a small wire mesh cage where plaintiff was confronted by 6 or 7 other ad seg staff to determine plaintiff's mental stability. (Id. at 11.) Plaintiff alleges he was confronted because Esberto "falsely and mistakenly told these professionals that plaintiff was not eating because 'he was on a hunger strike' as a pretext." (Id.) Plaintiff received no medical attention on July 3, 2007.
On July 4, 2007, Officer Ramirez again informed defendant Esberto of plaintiff's medical condition. At this point, plaintiff claims he was unable to get out of bed and "seemed to be in a semi-conscious state." (Id. at 11.) Esberto had plaintiff taken to the B-1 emergency medical clinic where plaintiff was could barely stand or talk, severely dehydrated, and was prescribed anti-nausea/anti-diarrhea medication. (Id. at 12.) Plaintiff was admitted to the clinic where he received IV fluids for most of the afternoon. Plaintiff was diagnosed with severe dehydration brought on by "an unknown stomach virus or other ailment." (Id.) Plaintiff contends there was an outbreak of the Norovirus throughout California Department of Corrections and Rehabilitation ("CDCR") prisons in the summer of 2007, yet plaintiff was not tested for this virus. Plaintiff alleges defendants violated the Eighth Amendment because they were deliberately indifferent to plaintiff's serious medical needs, abused their power of authority by making unauthorized and unqualified decisions concerning plaintiff's need for medical care, and despite high temperatures, and plaintiff being on psychotropic or other medications from July 1, 2007, through July 4, 2007, no one offered plaintiff cold liquids or access to cold showers, and no health care personnel checked on plaintiff's well-being on July 1 or 2, 2007, in violation of the Remedial Health Plan (id. at 14), established under Coleman v. Wilson, 912 F.Supp. 1282 (9th Cir. 1995).
On March 22, 2010, the court found plaintiff states two cognizable claims for relief: (1) deliberate indifference to a serious medical need;*fn4 and (2) unconstitutional conditions of excessive heat, both in violation of the Eighth Amendment. (Dkt. No. 6 at 2.)
IV. Motion for Summary Judgment
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(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., citing Fed. R. Civ. P. 56(c). 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. 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).
By order filed May 20, 2010, 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. 11); 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 summary judgment, the court finds that the following facts are either not disputed, or, following the court's review of the evidence submitted, are deemed undisputed, unless otherwise indicated:
1. At all relevant times, plaintiff was incarcerated at CMF.
2. At all relevant times, defendants were employed by the CDCR.
3. Defendants Lyons and Echevarria worked as correctional officers, and defendant Esberto, a Registered Nurse, worked as a correctional nurse.
4. At all relevant times, defendants were assigned to CMF I-3 ad seg wing.
5. Plaintiff alleges he contracted a "food borne illness" on or about June 30, 2007.
6. On July 1, 2007 and July 2, 2007, defendant Echevarria was on duty at CMF from 7:00 a.m. to 3:00 p.m.
7. Plaintiff alleges that he informed ad seg correctional officers, including defendant Echevarria, on July 1, 2007, that plaintiff contracted a food borne illness from the night before, requested medical assistance, and was told there was no nurse on duty. Defendants dispute this allegation; defendants contend plaintiff did not appear to be subject to a medical emergency, and did not request medical care on July 1, 2007, and that a nurse is assigned to each wing.
8. Plaintiff alleges he spoke to defendant Echevarria on July 2, 2007, and requested medical attention. Plaintiff contends he described his symptoms, and that defendant Echevarria responded by closing the food tray slot and leaving. Defendant Echevarria did not summon emergency medical assistance. Defendant Echevarria disputes these allegations, declaring he does not recall plaintiff asking for medical care on July 2, 2007.
9. According to the ad seg unit Log Book, breakfast and lunch were passed out at 0620, prior to defendant Echevarria's shift.
10. Defendant Echevarria did not distribute meals to the ad seg unit on the morning of July 2, 2007.
11. Daily activity records indicate that meals were served to plaintiff on July 2, 2007, without refusal. Plaintiff disputes this fact, claiming different staff members do not always keep the Log Book records "correct and documented." (Dkt. No. 65-1 at 7.)
12. On July 2, 2007, plaintiff did not appear ill to defendant Echevarria. Plaintiff disputes this fact, claiming plaintiff informed defendant Echevarria of plaintiff's illness.
13. The Log Book records do not show any complaint made by plaintiff during defendant Echevarria's watch on July 2, 2007. Plaintiff disputes this fact, for the same reason stated in No. 11.
14. On July 2, 2007, staff marked off plaintiff as having completed a shower under the "Record of Daily Activity." (Dkt. No. 58-3 at 9.)
15. Defendant Echevarria was not on duty on July 3, 2007, or July 4, 2007.
16. Defendant Echevarria has undergone institutional training to recognize signs ...