The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff Markus Yearby is a former state prisoner, who proceeds without counsel and in forma pauperis, in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds pursuant to the authority of the undersigned magistrate judge for all purposes. See 28 U.S.C. § 636(c); Local Rule 305(a). The case proceeds on plaintiff's Fourth Amended Complaint (Dkt. No. 59), against sole defendant, Gillian Dudley, a Physician's Assistant at High Desert State Prison ("HDSP"). Pending is defendant's motion for summary judgment. (Dkt. No. 110.) Plaintiff filed an opposition (Dkt. No. 112);*fn1 defendant filed a reply (Dkt. No. 113). For the reasons that follow, the court grants defendant's motion for summary judgment.
Pursuant to his Fourth Amended Complaint ("complaint"), plaintiff alleges that defendant Dudley, while working as a Physician's Assistant ("PA") at HDSP, was deliberately indifferent to plaintiff's serious medical needs concerning his right shoulder condition. Plaintiff alleges that, as a result and for a period of 27 days, he was subjected to significant pain and suffering, and difficulties in executing day-to-day activities,*fn2 particularly difficulty in showering because he was unable to comply with the requirement of HDSP's Administrative Segregation Unit ("ASU") that inmates be cuffed behind the back. Plaintiff designates the end of this 27-day period as November 13, 2007, when he received medical attention for his right shoulder. However, plaintiff also contends that he has had "long term" consequences extending "to the present day."*fn3 (Yearby Depo. at 12, 42, 45.)
The complaint also alleges that defendant acted in retaliation against plaintiff for exercising the right to challenge the quality of his medical care pursuant to the administrative grievance process.
Pursuant to these allegations, as previously narrowed by the court (see findings and recommendations filed July 21, 2010, adopted on September 22, 2010 (Dkt. Nos. 97, 100)), this action proceeds on plaintiff's legal claims that defendant was deliberately indifferent to plaintiff's serious medical needs, in violation of the Eighth Amendment to the United States Constitution; that defendant was negligent under a state tort (medical malpractice) theory; and that defendant retaliated against plaintiff in violation of the First Amendment to the United States Constitution.
II. Legal Standards 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 . . . 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), quoting Federal Rule of Civil Procedure 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. 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., Ltd. 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 Anderson, 477 U.S. at 248; T.W. Elec. Serv., 809 F.2d at 631.
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 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. 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. 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. 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).
On May 7, 2008, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 17.) See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
III. Undisputed and Disputed Facts
Unless otherwise noted, the following facts are undisputed by the parties, or deemed undisputed pursuant to the court's review of the record.
1. On September 10, 2007, plaintiff Markus Yearby was placed in HDSP's ASU.
2. Defendant Gillian Dudley, a Physician's Assistant, treated Yearby twice during his incarceration at HDSP.
3. Defendant first saw plaintiff for a cut to his right hand, on September 10, 2007. Defendant cleaned and bandaged plaintiff's hand wound, and prescribed a tetanus shot, penicillin, and pain medication. Plaintiff does not challenge defendant's quality of care on this date.
4. Defendant next saw plaintiff on October 17, 2007; plaintiff challenges the quality of defendant's care on this date only.
5. Between September 10, 2007, and October 17, 2007, plaintiff submitted several "Health Care Request Forms" (CDC 7362); only one, submitted October 1, 2007, complained of shoulder pain:
a. On September 13, 2007, plaintiff requested refills for "prescriptions of Methocardonal/Tylenol and prylosec." (Dkt. No. 110-8 at 23.)*fn4
b. On September 14, 2007, plaintiff requested access to his "previous prescription of Aprodine . . . for my chronic sinus condition." (Id. at 24.)
c. On September 17, 2007, plaintiff requested assistance for his "problem with medication." (Id. at 25.)
d. Also on September 17, 2007, plaintiff requested access to his prescriptions for "Methocardenol, Tylenol and Omoprezol." (Id. at 27.)
e. On September 20, 2007, plaintiff requested medical attention for "sever[e] pain and burning in my stomach due to acid reflux and indigestion and I have been prescribed Omeprozol in the past but the C/Os took my meds." (Id. at 29.)
f. Also on September 20, 2007, plaintiff sought the following medical assistance: "I am having a great deal of pain in my lower and middle back area. I was prescribed Methocarbenal and Tylenol for this but the staff will not allow me access to my medication." (Id. at 30.)
Plaintiff was seen by Registered Nurse ("RN") Punt on September 20, 2007, for the above ...