FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants Lee, Reddy, Bal, Dunlap, and Torruella's ("defendants")*fn1 move for summary judgment.*fn2 For the reasons set forth below, the court recommends that defendants' motion be granted.
This action proceeds on plaintiff's amended complaint filed on July 13, 2010. Dckt. Nos. 8, 9. In his amended complaint, plaintiff alleges that defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article 1, section 17 of the California Constitution. Plaintiff also alleges that defendant Reddy violated California Government Code section 845.6 by failing to summon medical care.*fn3
The evidence submitted by defendants establishes the following. At all times relevant to the present action, plaintiff was a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR") at Folsom State Prison ("FSP"). Defs.' Mot. for Summ. J. ("Defs.' MSJ"), Stmt. of Undisputed Facts in Supp. Thereof ("DUF") 1. Defendants were physicians at FSP and at various times each defendant prescribed plaintiff medication, including medication to treat plaintiff's diabetes and hypertension. DUF 2-3. On September 2, 2008, plaintiff was examined by a triage nurse because plaintiff had pimples of unknown etiology on his leg. DUF 4. At the request of the triage nurse, defendant Lee prescribed plaintiff the topical antifungal Tolnaftate cream and the oral antihistamine Chlorpheniramine. DUF 5. Plaintiff was informed that he would have a follow up appointment with a physician in two weeks. DUF 4.
On September 11, 2008, defendant Lee examined plaintiff and noted that plaintiff had skin lesions on his legs, arms, and trunk. DUF 6-7. Lee discontinued the Tolnaftate and Chlorpheniramine, and prescribed plaintiff the topical corticosteroid Triamcinolone cream. DUF 8. On September 25, 2008, defendant Torruella examined plaintiff. Torruella performed a skin biopsy and prescribed plaintiff a different topical corticosteroid ointment and oral antibiotic. DUF 9. The pathology report for plaintiff's skin biopsy showed lichenoid dermatitis, which is consistent with the auto-immune disorder lichen planus. DUF 10. After receiving the pathology report, Torruella initiated the necessary paper work to have plaintiff evaluated by an outside dermatologist. DUF 12.
On October 3, 2008, Lee examined plaintiff and discussed the possible diagnosis of lichen planus. DUF 11. Lee also increased plaintiff's dosage of Betamethasone ointment to three times a day and prescribed Tylenol with codeine to address plaintiff's complaints of a painful rash. Id. Plaintiff was examined again by Lee on October 9, 2009. DUF 13. Because there had been no improvement to plaintiff's condition, Lee upgraded plaintiff's referral to urgent. DUF 13.
Plaintiff was examined by Dr. Barr, Assistant Professor of Dermatology at U.C. Davis Medical Center, on October 20, 2008. DUF 14. Dr. Barr confirmed that plaintiff had the condition lichen planus and presented treatment options. Id. The following day, Lee implemented Dr. Barr's treatment recommendations of applying the corticosteroid cream Triamcinolone over plaintiff's entire body after bathing and prescribing the oral antihistamine Hydroxyzine and the oral antibiotic Keflex. DUF 15. Lee continued to treat plaintiff's skin condition, which improved under Lee's care. DUF 17.
II. Summary Judgment Standards
Summary judgment is appropriate when 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). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.
The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to "'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson., 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).
A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-24 (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.'"). 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. In such a circumstance, summary judgment must 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.
To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). Whether a factual dispute is material is determined by the substantive law. Id. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.
Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such that a fair-minded jury "could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.
The court does not determine witness credibility. It believes the opposing party's evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of "thin air," and the proponent must adduce evidence of a factual predicate from which to draw inferences. American Int'l Group, Inc. v. American Int'l Bank, 926 F.2d 829, 836 (9th Cir.1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand,"[w]here the record taken as a whole could not lead a rational ...