The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 43)
Plaintiff Emelito Exmundo ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants B. Kane and A. Ross for retaliation in violation of the First Amendment and deliberate indifference to a serious medical need in violation of the Eighth Amendment.*fn1 Pending before the Court is Defendants' motion for summary judgment, filed April 4, 2011. Defs.' Mot. Summ. J., Doc. 49. Plaintiff filed his opposition on May 16, 2011.*fn2 Pl.'s Opp'n, Doc. 54. Defendants filed their reply on May 24, 2011. Defs.' Reply, Doc. 55.
On November 9, 2011, the Court granted Defendants leave to supplement their motion to address Plaintiff's Eighth Amendment claim. On November 21, 2011, Defendants filed their supplement to their motion for summary judgment. Doc. 56. On March 1, 2012, Plaintiff filed his opposition to the supplement. Docs. 61, 62, 63, 64. On April 4, 2012, Defendants filed their reply. Doc. 67. The matter is submitted pursuant to Local Rule 230(l).
II. Summary Judgment Standard
Summary judgment is appropriate when it is demonstrated that there exists no genuine dispute as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 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. at 324. 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. 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 dispute as to any material fact actually does exist. 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 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. Fed. R. Civ. P. 56(c); 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, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2002); 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, Long v. County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006); 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 former Rule 56(e) advisory committee's note on 1963 amendments).
In resolving a motion for summary judgment, 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, and 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 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which an 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 dispute, 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 586-87 (citations omitted).
III. Statement Of Facts*fn3
Plaintiff is a state inmate, serving life without parole for first
degree murder. Pl.'s Dep. 12: 12-17, Aug. 26, 2010.*fn4
Plaintiff is currently incarcerated at Pleasant Valley State
Prison (PVSP). Pl.'s Dep. 12:18-22. Plaintiff has no education or
employment experience in the medical field. Pl.'s Dep. 13:6-15:20.
Plaintiff was a participant in the Mental Health Delivery system at
the Correctional Clinical Case Management System (CCCMS) level of
care. Def.'s Ex. 1.
A. March 21, 2007 Incident
On the morning of March 21, 2007, Defendant Kane was working in the pill-window in the satellite medical clinic in Facility "A." Kane Decl. ¶ 2; Defs.' Ex. 1. The pill window was used to dispense direct observation therapy (DOT) medications. Medication administered as DOT means that the dispensing nurse watches the inmate swallow the medication, and examines the inmate's open mouth to help insure that the inmate actually swallowed the medication. Kane Decl. ¶ 3; Pl.'s Dep. 45:2-19. Defendant Kane was aware through her training and experience that medications are administered by DOT in several instances including: 1) when they affect the inmate's physiological stability; 2) when they are potentially dangerous; or 3) when they can be bartered or sold to other inmates. Kane Decl. ¶ 4.
Defendant Kane was aware through her training and experience that inmates will sometimes pretend to swallow medications, but actually hide the medications at the back of the throat, under the tongue or between the check and gums. Kane Decl. ¶ 5; Pl.'s Dep. 47:4-24. This practice is known as "cheeking." Defendant Kane was aware through her training that cheeking medications is a rules violation for many reasons, including: 1) It gives medical staff the impression that the inmate is medication-compliant when he is not. Such a false impression can seriously and adversely affect the inmate's treatment program. 2) Inmates will cheek and horde medications and take them all at once-either to get "high" or commit suicide, and 3) Inmates will cheek and horde medications to barter or sell to other inmates. Any of these practices can seriously and adversely affect the health of inmates and the safety and security of the institution. Kane Decl. ¶ 6.
On the morning of March 21, 2007*fn5 , Plaintiff's prescriptions called for four medications to be administered by DOT: Gabapentin (Neurontin); Buspirone (Buspar); Quetiapine (Seroquel) and Fluoxetine (Prozac). Kane Decl. ¶ 9; Def.'s Ex. 2; Pl.'s Dep. 54:8-56:21. While administering Plaintiff's medications by DOT at the pill window on the morning of March 21, 2007, Defendant Kane contends that she saw Plaintiff attempt to cheek his medication by simulating swallowing. Defendant Kane contends that when she examined Plaintiff's open mouth, she saw Prozac on the back of his tongue. Defendant Kane contends that she ordered him to swallow the tablet. After ignoring repeated requests, Plaintiff finally complied. Kane Decl. ¶ 10; Def.'s Ex. 1.
Plaintiff contends that he has a very sensitive throat which makes it impossible for him to hide the drug on the back of his throat. Pl.'s Opp'n 4:22-24. Plaintiff further contends that the medication administration record (MAR) indicates that Buspirone, not Prozac, was the medication marked as cheeking. See Defs.' Mot. Summ. J., Ex. 2, MAR for Mar. 2007. Plaintiff contends that on the morning of March 21, 2007, he arrived at the pill window with a cup of water. Pl.'s Decl. ¶ 5, Doc. 50 at 36 of 111. Plaintiff gave his ID to Defendant Kane who held onto the ID to ensure that Plaintiff took his medication. Id. Plaintiff's gabapentin and Tylenol-3 had a crush order with water. Defendant Kane also crushed Plaintiff's other medication and placed the pills in the cup. Id. Plaintiff first showed her that his cup had water. After he swallowed his medication, Plaintiff had to show his cup again to show the water had been consumed. Plaintiff also had to show his mouth. Defendant Kane gave back Plaintiff's identification. She then called Plaintiff back and asked for his identification, and told Plaintiff that he was cheeking his medication. Id.
Defendant Kane wrote a Rules Violation Report (RVR) for Plaintiff's failure to comply with medical procedures. Kane Decl. ¶ 11; Defs.' Ex 1. Defendant Kane wrote the RVR for Plaintiff's failure to comply with medical procedures because she believed Plaintiff had attempted to cheek his medication on March 21, 2007. Kane Decl. ¶ 11. After a hearing on March 27, 2007, Plaintiff was found guilty and assessed a 30-day loss of good-time credits as well as a 30-day loss of dayroom and telephone privileges. Pl.'s Dep. 74:5-22; Defs.' Ex. 1. The guilt finding has not been overturned. Pl.'s Dep. 79:21-80:10. Defendant Kane contends that she did not write the RVR against Plaintiff in retaliation for any inmate appeals (CDCR form 602) or ADA Modification or Accommodation Requests (CDCR form 1824) that Plaintiff had filed. Kane Decl. ¶ 12. At the time of the March 21, 2007 incident, and when Defendant Kane wrote the RVR, Defendant Kane was not aware of any inmate appeals or ADA Modification or Accommodation Requests that Plaintiff had filed. Kane Decl. ¶ 12.
Plaintiff claims Defendant Kane wrote the RVR in retaliation for two appeals: one with log number PVSP 07-00990; and the other with no log number, dated March 20, 2007. Pl.'s Dep. 81:4-16; 92:9-95:9; 99:16-110:1; Pl.'s Dep. Ex. 5; Compl., Ex. F-1. Appeal PVSP 07-00990 started as a CDCR form 1824 dated February 1, 2007. Plaintiff mailed the form 1824 to the appeals coordinator office by institutional mail. Pl.'s Dep. 71:18; 82: 11-14; 84:9-86:15; Pl.'s Dep. Ex. 5. Plaintiff describes the problem in the form 1824 as follows: "Corrections Officers had been asking me proof of my disabilities. And I have been stopped from going to chow and I was reprimanded and told that I cannot go to the yard because I am slow. I have been asked for my chronos. I have to stand in line a long time to get my medication." Pl.'s Dep. Ex. 5, last page. Plaintiff requested the following relief in the form 1824: "Renew my chronos for sunglasses, lower bunk and lower tier chrono, double mattress chrono, back brace and knee brace and to be placed on the DNY and DNM list." Pl.'s Dep. Ex. 5, last page. Appeal PVSP 07-00990 was partially granted. Pl.'s Dep. 109:2-110:1.
The other appeal that Plaintiff claims Defendant Kane was retaliating for is dated March 20, 2007. Pl.'s Dep. 92:9-95:9; 97:23-98:19; Compl. Ex F-1. In his March 20, 2007 appeal, Plaintiff requested to be referred to a pain specialist and an ophthalmologist. This appeal was partially granted. Pl.'s Dep. 94:3-95:9; Compl. Ex F-1. Plaintiff testified at his deposition that he placed the appeal in the "medical box" the night of March 20, 2007. Plaintiff then changed his testimony, stating he gave the appeal to an unknown nurse at the pill window the night of March 20, 2007. Pl.'s Dep. 73:5-18; 95:10:-96:18. Nurses at the pill window do not process, and will not accept, inmate appeals. Morgan Decl. ¶ 3. Plaintiff contends that he submitted the unmarked March 20, 2007 grievance directly to an unknown nurse at the pill window. Pl.'s Opp'n 15:8-17. The appeals were returned to Plaintiff by institutional mail. Institutional mail may take several days to deliver. Morgan Decl. ¶ 4. Plaintiff had seen Defendant Kane many times before March 21, 2007, without any incident. Plaintiff testified at his deposition that the March 21, 2007 incident was a "surprise" because he had not experienced any animosity from Defendant Kane. Pl.'s Dep. 30:24-31:25.
Defendant Kane contends that she was working the pill-window on May 21, 2007.*fn6 The nurse working the pill-window has each inmate's MAR which keeps track of what and when medications are given to a particular inmate. The far left column lists the prescriptions, with "start" and "stop" dates. Kane Decl. ¶¶ 7, 14. Defendant Kane cannot dispense prescription medications without a current prescription. If an inmate's prescription runs out, Defendant Kane cannot dispense the medication. Defendant Kane Decl. ¶ 13. On May 21, 2007, Plaintiff's prescription for Neurontin ran out. The prescription in the MAR ends on that day. The word "stop" is written on that day in the MAR. Kane Decl. ¶ 15; Ex. 3. Defendant Kane did not dispense Neurontin to Plaintiff on May 21, 2007, solely because the prescription ran out. Defendant contends that she did not refuse to give him Neurontin that day in retaliation for any other reason. Kane Decl. ¶ 15; Def.'s Ex. 3. The next day, Dr. Vilasayne prescribed Neurontin for Plaintiff. Plaintiff was given Neurontin on May 22, 2007. Pl.'s Dep. 116:4-23; Def.'s Ex. 3, 4.
Plaintiff contends that Defendant Kane failed to provide his pain medication on May 24, 2007. Pl.'s Decl. ¶ 10. Plaintiff contends that Defendant Kane did not work on May 21, 2007. Pl.'s Opp'n 5:3-17. Plaintiff contends that he was mislead by Defendant Kane into believing that his medication had been discontinued based on her word to Dr. Vilaysane. Id. It was standard practice by the doctor to discontinue a medication and prescribe the new medication. Id.
C. November 22, 2007 Incident
On the early evening of November 22, 2007, Defendant Ross was working the pill-podium in Facility "A." Ross Decl. ¶ 2. The pill podium was used to dispense DOT medications. Medication administered as DOT means that dispensing nurse watches the inmate swallow the medication, and examines the inmate's open mouth help insure that the inmate actually swallowed the medication. This was done as a precaution against cheeking. Ross Decl. ¶¶ 2, 5; Pl.'s Dep. 45:2-19. Defendant Ross was aware through her training that inmates will sometimes cheek their medications. Ross Decl. ¶ 3; Pl.'s Dep. 47:4-24. Defendant Ross was aware through her training that cheeking medications is a rules violation for many reasons, including: 1) It gives medical staff the impression that the inmate is medication-compliant when he is not; 2) Inmates will cheek and horde medications and take them all at once--either to get "high" or commit suicide; and 3) Inmates will cheek and horde medications to barter or sell to other inmates. Any of these practices can seriously and adversely affect the health of inmates and the safety and security of the institution. Ross Decl. ¶ 3.
The nurse working the pill-podium has each inmate's MAR which keeps track of what and when medications are given to a particular inmate. The far left column lists the prescriptions.
Next to each prescription are 31 columns for each day of the month. Four sections under each day records whether the medication was given morning (08), noon (12), evening (18) or night (20). The nurse administering the medication will initial the box indicating the date and time the medication was given. The MAR is maintained in the ordinary course of business, the data is entered and kept in the course of regularly conducted business activity by the medical staff, at or near the time the information is received. Ross Decl. ¶ 4.
At that time, the inmates receiving medication would come to the podium with a cup of water. The inmate would give the nurse his identification card, and the nurse would have the inmate's MAR and the medication in a cart arranged alphabetically by the inmates' last name. The nurse would then read the MAR's prescription column to determine the correct dosage, time and method of administration. The nurse would pull the medications from the cart in accordance with the MAR and give them to the inmate. If the prescription was for multiple pills, the inmate could swallow them all at once, or one at a time, if he preferred. For DOT medications, an inmate was required to open his mouths and lift his tongue to show he swallowed the medications. This was done as a precaution against cheeking. Ross Decl. ¶ 5.
On the evening of November 22, 2007*fn7 , Plaintiff's prescriptions called for five medications to be administered by DOT: Gabapentin (Neurontin); Aceta/Codeine (Tylenol-3); Buspirone (Buspar); Phenytoin (Dilantin) and Diphenhydramine (Benadryl). Ross Decl. ¶ 6; Pl.'s Dep. 141:19-24; Def. Ex. 5. Plaintiff's prescription for Neurontin called for it to be crushed and given in water. Ross Decl. ¶ 6; Def.'s Ex. 5. Plaintiff's prescription for Tylenol-3 was one 30 mg tablet. Ross Decl. ¶ 6; Def.'s Ex. 5. Plaintiff's prescription for Buspar was one, small 15 mg.tablet. Ross Decl. ¶ 6; Def.'s Ex. 5. Plaintiff's prescription for Dilantin was three 100 mg tablets. Ross Decl. ¶ 6; Def.'s Ex. 5. Plaintiff's prescription for Benadryl was three 50 ...