ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This matter is before the court on plaintiff's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and on defendants' cross-motion for summary judgment.
Plaintiff is proceeding on his verified amended complaint against the following defendants: Physician's Assistant Rafael Miranda, Dr. John Nepomuceno, Dr. Dorothy Swingle, litigation coordinators Dianne Frazier and Drae Garbutt, and Jean Walker - the Chief of Health Care for the California Department of Corrections and Rehabilitation (CDCR). The claims presented by plaintiff in this action arose while he was incarcerated at High Desert State Prison (HDSP). In his amended complaint, plaintiff alleges as follows. On June 12, 2009, plaintiff "wrenched his back" while working on "trash detail duties[.]" (Doc. No. 11 at 3.) Plaintiff felt "a tingling sensation and numbing throughtout [sic] right leg," back pain and "searing" neck pain. (Id.) Plaintiff went to the medical clinic and was seen by defendant Physician's Assistant Miranda who ordered a three-day lay-in and "offered . . . a shot of tuoradol [sic] and tylenol 3's[.]" (Id.) Plaintiff advised defendant Miranda that he had received that same treatment once before and that it did not relieve his pain. Plaintiff also explained to Miranda that in 1998, he had been stabbed over thirty times, that this old injury was likely the reason for his current extreme pain and that "an MRI would probably reveal old injuries as well as the new aggravated ones so I can get the correct treatment and pain meds." (Id. at 3-4.) Defendant Miranda, nonetheless, did not modify plaintiff's treatment plan and ordered the lay-in, two tylenol 3's and "script for T-3's" while scheduling a follow-up appointment. (Id. at 4.)
On June 16, plaintiff saw defendant Physician's Assistant Miranda again and was told that physical therapy would be ordered. (Id.) Plaintiff again told defendant Miranda that he needed a MRI and an appointment with a pain specialist so that he could get a prescription to alleviate his pain. (Id.) Defendant Miranda told plaintiff that he would probably have discomfort for the rest of his life due to his past stabbing injuries and that morphine would help the pain but that because prisoners were being taken off morphine, plaintiff would have to "deal with . . . [the] pain some other way." (Id.) Defendant Miranda also told plaintiff that a MRI was not indicated and never be approved. (Id. at 5.) Plaintiff contends that he "never received any kind of pain meds[,] not even the tylenol 3's he was prescribed[.]" (Id.)
Plaintiff filed inmate appeals complaining about his pain, sleep loss, and lack of pain medication. (Id. at 6.) At the first level of review, plaintiff was told that a physical therapy appointment would be scheduled and was required before a MRI could be ordered. (Id.) Defendant Dr. Nepomuceno signed this first level decision without examining or interviewing plaintiff. (Id.) At the second level inmate appeal plaintiff again complained about his pain, medical staff's refusal to order an MRI or to provide him pain medication, and the uselessness of physical therapy. (Id.) Defendants litigation coordinator Garbutt and Dr. Swingle signed the decision denying plaintiff's inmate appeal at the second level of review. (Id.) At the third level of review, plaintiff's appeal again complained about the pain he was suffering and that the promised physical therapy appointment had not yet been scheduled. (Id. at 6-7.) Defendant Walker, Chief of Health Care for CDCR, signed this third level decision denying plaintiff's appeal without conducting any investigation. (Id. at 7.)
While waiting for the third level decision, plaintiff was called for a physical therapy appointment but refused to go because it was then six months after his injury, he felt that the belated appointment was of questionable benefit at that point, and he was receiving hepatitisC treatment for the previous three to four months and did not feel well that day. (Id.) On July 1, 2010, plaintiff was transferred to the Substance Abuse and Treatment Center (SATF) at Corcoran State Prison and a MRI of plaintiff's back was ordered on August 8, 2010. (Id. at 8.)
Based on these factual allegations plaintiff alleges that he was denied adequate medical treatment from June 12, 2009 to July 1, 2010 in violation of his rights under the Eighth Amendment. (Id.) He seeks declaratory judgment, compensatory and punitive damages, and treble damages. (Id. at 9.)
SUMMARY JUDGMENT STANDARDS 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 moving party is entitled to a 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) (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. "[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.
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 (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. 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 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 (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. 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 (citation omitted).
OnOctober 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 (9th Cir. 1988). OTHER APPLICABLE LEGAL STANDARDS
I. Civil Rights Act Pursuant to 42 U.S.C. § 1983
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
II. Eighth Amendment and Adequate Medical Care
The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). In order to prevail on a claim of cruel and unusual punishment, a prisoner must allege and prove that objectively he suffered a sufficiently serious deprivation and that subjectively prison officials acted with deliberate indifference in allowing or causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).
Where a prisoner's Eighth Amendment claims arise in the context of medical care, the prisoner must allege and prove "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has two elements: "the seriousness of the prisoner's medical need and the nature of the defendant's response to that need." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
A medical need is serious "if the failure to treat the prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin, 974 F.2d at 1059 (quoting Estelle v. Gamble, 429 U.S. at 104). Indications of a serious medical need include "the presence of a medical condition that significantly affects an individual's daily activities." Id. at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
If a prisoner establishes the existence of a serious medical need, he must then show that prison officials responded to the serious medical need with deliberate indifference. Farmer, 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny, delay, or intentionally interfere with medical treatment, or may be shown by the way in which prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a prisoner's civil rights have been abridged with regard to medical care, however, "the indifference to his medical needs must be substantial. Mere 'indifference,' 'negligence,' or 'medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) ("Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights."); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is "a state of mind more blameworthy than negligence" and "requires 'more than ordinary lack of due care for the prisoner's interests or safety.'" Farmer, 511 U.S. at 835 (quoting Whitley, 475 U.S. at 319).
Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. at 104-05. To establish a claim of deliberate indifference arising from a delay in providing care, a plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). In this regard, "[a] prisoner need not show his harm was substantial; however, such would provide additional support for the inmate's claim that the defendant was deliberately indifferent to his needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). See also McGuckin, 974 F.2d at 1060. Finally, mere differences of opinion between a prisoner and prison medical staff as to the proper course of treatment for a medical condition do not give rise to a § 1983 claim. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
I. Plaintiff's Arguments and Evidence
A. Statement of Undisputed Facts
Plaintiff's statement of undisputed facts (Doc. No. 33) is supported by reference to plaintiff's verified complaint and defendants' answer filed on March 15, 2011.
The evidence submitted by plaintiff establishes the following. After plaintiff injured his back, defendant Physician's Assistant Miranda ordered a three-day lay-in for plaintiff from his yard crew job assignment. (Doc. No. 33 at 1.) When defendant Miranda offered plaintiff a Toradol*fn1 shot and tylenol 3's, plaintiff advised defendant Miranda that he had received both once before and they did not relieve his pain. (Id.) Nonetheless, plaintiff was given the three day lay-in so he would not have to report to work, two tylenol 3's, a prescription for additional tylenol 3's, and was scheduled for a follow-up appointment on June 15, 2009. (Id.) However, plaintiff was not seen by defendant Miranda until June 16, 2009, and was told he would be scheduled for physical therapy. (Id. ...