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. Pending before the court is the December 28, 2011 summary judgment motion filed by defendants Queen of the Valley Medical Center and NorthBay Healthcare ("NorthBay").
On February 3, 2012, plaintiff filed a motion for an extension of time to file an opposition to defendants' summary judgment motion. On February 29, 2012, the undersigned granted plaintiff a thirty day extension of time to file an opposition. Thirty days passed and plaintiff did not file an opposition. Accordingly, on April 11, 2012, the undersigned recommended that this action be dismissed. On April 12, 2012, plaintiff filed his opposition to defendants' summary judgment motion and a request to deem his motion timely. Good cause appearing, the April 12, 2012 findings and recommendations are vacated and plaintiff's opposition is deemed timely.
For the following reasons, the undersigned recommends that defendants' summary judgment motion 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).
This action is proceeding on the amended complaint filed October 13, 2010. (Dkt. No. 10.) Plaintiff alleges that in 2005, he began experiencing chest pain. Plaintiff alleges that for the next few years, he continued to suffer from chest and lung pain. Plaintiff alleges that on May 4, 2009, he was taken to Vaca Valley Hospital because he suffered a heart attack. Plaintiff alleges that seven days later, he was taken to defendant Queen of the Valley Hospital where he underwent an angioplasty. Plaintiff alleges that the angioplasty resulted in damage to plaintiff's heart that forced doctors to perform an emergency by-pass operation.
Plaintiff alleges that on September 28, 2009, he was taken to defendant Northbay where a pace-maker was installed in his chest. Plaintiff allegedly did not know what procedure was being performed until after the surgery.
Plaintiff alleges that defendant Queen of the Valley Hospital has a policy of having unqualified surgeons perform surgery on inmates. Plaintiff alleges that he suffered injuries as a result of this policy following his angioplasty and emergency by-pass surgery. Plaintiff alleges that defendant Northbay has a policy of allowing doctors to perform experimental or unnecessary surgery. Plaintiff alleges that he was injured as a result of this policy because the installation of his pacemaker was unnecessary and has made his life-threatening condition more severe.
Defendants' summary judgment motion contains a statement of undisputed facts. Plaintiff's opposition is not verified and nor does it contain a statement of undisputed facts. Plaintiff's opposition also does not include any evidence. To the extent appropriate, the undersigned considers plaintiff's verified amended complaint in determining the undisputed and disputed facts. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10--11 (9th Cir. 1995) (treating plaintiff's verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, and allegations were not based purely on his belief but on his personal knowledge).
Defendant Queen of the Valley Hospital Policies
The physicians and surgeons who provide patient care at defendant Queen of the Valley Hospital are independent contractors. (Dkt. No. 27-4 at 49.) Before a physician can admit and treat a patient at defendant Queen of the Valley Hospital, he or she must apply for and be granted staff privileges. (Id.)
When a physician applies for staff privileges at defendant Queen of the Valley Hospital, they are subjected to the credentialing process set forth in defendant's Bylaws. (Id.) All applications for medical staff at defendant Queen of the Valley Hospital are reviewed by the Credentialing Committee, the Medical Staff Executive Committee ("MSEC"), and defendant's Board of Trustees. (Id.) Upon receipt of an application, the Credentials Committee examines the character, professional competence, malpractice history, qualifications and ethical standing of the physician who is applying for staff privileges. (Id.) The Credentials Committee then transmits to the MSEC the completed application and a recommendation as to whether the physician should be granted privileges. (Id.) The MSEC then reviews the recommendations of the Credentials Committee and determines whether to recommend to the Board of the Trustees that the physician receive staff privileges. (Id. at 49-50.) If the MSEC issues a favorable recommendation, and the Board of Trustees concurs, then the physician will be granted staff privileges. (Id. at 50.)
In order to obtain staff privileges at defendant Queen of the Valley Hospital, the physician must demonstrate that he is a professionally competent practitioner who continuously meets the qualifications, standards and requirements set forth in the Bylaws. (Id.) In particular, the practitioner must be licensed to practice as a physician in the State of California, must document their background, experience, training and demonstrated competence, their adherence to the ethics of the profession, their good reputation, their physical and mental health, and their ability to work with others. (Id.)
Defendant Queen of the Valley Hospital carries out periodic re-credentialing of clinical privileges. (Id.)
Dr. Dassah is a cardiologist who had staff privileges to admit and treat patients under his care at defendant Queen of the Valley Hospital in May 2009. (Id. at 51.) Dr. Dassah's privileges as of May 2009 at defendant Queen of the Valley Hospital extended to the treatment of all of his patients, including but not limited to inmates of the California Department of Corrections and Rehabilitation ("CDCR"), with whom he had a contract. (Id.)
Before being granted staff privileges at defendant Queen of the Valley, Dr. Dassah went through the same credentialing process as all other physicians seeking staff privileges, and it was determined that he met all the necessary qualifications, standards and requirements, and was subject to the periodic re-credentialing process. (Id.)
Dr. Srebro is a cardiologist who had staff privileges to admit and treatment patients, including CDCR inmates, under his care at defendant Queen of the Valley Hospital in May 2009. (Id.) Dr. Deeik and Dr. Klingman also had staff privileges to admit and treat patients, including CDCR inmates, under their care at defendant Queen of the Valley Hospital in May 2009. (Id.) Dr. Srebo, Dr. Deeik and Dr. Klingman went through defendant Queen of the Valley Hospital's credentialing process before being granted staff privileges. (Id.)
Defendant Queen of the Valley does not have a policy that permits physicians with staff privileges to provide medical care to patients, including CDCR inmates, that falls below the professional standard of care. (Id.)
Defendant NorthBay Policies
Defendant Northbay is a non-profit healthcare organization that operates hospital facilities and provides personnel to assist physicians and surgeons in the treatment of their patients. (Dkt. No. 27-5 at 14.) All physicians and surgeons furnishing services to patients at defendant NorthBay's hospitals are independent contractors. (Id.)
Before a physician or surgeon can admit and treat his or her patients at defendant NorthBay's hospitals, he or she must apply for staff privileges. (Id.) Defendant NorthBay, through its medical staff, fully evaluates all physicians and surgeons who have applied or re-applied for staff privileges before granting any such privileges to them. (Id.) Defendant NorthBay only extends staff privileges to professionally competent practitioners who continuously meet the necessary qualifications, standards and requirements. (Id.) Practitioners must be licensed to practice as physicians in the State of California, must document their background, experience, training, demonstrate competence both in general and as to specified invasive procedures, and demonstrate their adherence to the ethics of the medical profession and be of sound mental and physical health. (Id. at 14-15.)
Dr. Dassah is a physician who has staff privileges to admit and treat patients at defendant NorthBay's hospitals. (Id. at 15.) Dr. Dassah's privileges at defendant NorthBay extend to the treatment of all of his patients, including inmates of the ...