The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. This case is proceeding on the original complaint, filed August 27, 2009. Plaintiff alleges that defendant Dr. Basi was deliberately indifferent to plaintiff's serious medical needs in connection with the diagnosis and treatment of plaintiff's right shoulder, injured on December 26, 2007. Pending before the court is Dr. Basi's motion for summary judgment. As explained below, the court recommends that the motion for summary judgment be granted.
II. Plaintiff's Allegations
In his verified August 27, 2009 complaint, plaintiff alleges that on December 26, 2007, plaintiff was performing dips in the prison yard and heard two large popping/cracking sounds. Plaintiff immediately began to experience pain in his right shoulder. Plaintiff walked to the emergency clinic where he complained that he was in extreme pain due to a broken right shoulder. After waiting for two hours, plaintiff was seen by Dr. Basi, who examined plaintiff for about five to ten minutes. Dr. Basi ordered a clavicle brace for plaintiff, prior to the ordering of an x-ray. In lieu of a clavicle brace, plaintiff was given an arm sling for a broken arm. Dr. Basi then ordered an x-ray for plaintiff; plaintiff was x-rayed an hour later. Dr. Basi held the film up to normal light and told plaintiff that his shoulder was "fine." Dr. Basi told plaintiff to "lay-in" for six weeks. For pain, plaintiff was given an injection of Toradol, and prescribed Tylenol #3. Plaintiff walked back to his housing unit.
III. Motion for Summary Judgment
Dr. Basi moves for summary judgment on the grounds that there are no genuine issues of material facts and he is entitled to judgment as a matter of law. Plaintiff filed an opposition, and defendants filed a reply. (Dkt. Nos. 96, 97.) On July 24, 2012, plaintiff was advised of the requirements for filing an opposition to a motion for summary judgment under Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998), and granted an additional thirty days in which to file a supplemental opposition. (Dkt. No. 98.) On September 11, 2012, plaintiff filed an untimely*fn1 supplemental opposition. (Dkt. No. 100.) Dr. Basi filed a reply on September 19, 2012. (Dkt. No. 101.)
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment if the movant shows that 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).*fn2
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 then-numbered Fed. R. Civ. P. 56(c).) "Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 Advisory Committee Notes to 2010 Amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). 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. Celotex Corp., 477 U.S. 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.
Consequently, 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 such a dispute exists. See 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, 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).
By orders filed December 8, 2009, and July 24, 2012, the court advised plaintiff of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. Nos. 19, 98); see Rand, 154 F.3d at 957.
For purposes of the instant motion for summary judgment, the court finds the following facts undisputed.
1. Plaintiff was in the custody of the California Department of Corrections and Rehabilitation ("CDCR") at California State Prison in Solano ("CSP-Solano") from 2007 to 2008.
2. Defendant Dr. Amrik Basi is a licensed physician, employed as a family practitioner by the CDCR, from November 2006 to December 2008, rotating through three clinics, seeing inmates for a variety of medical problems. (Dkt. No. 92-3 at 42.)
3. On December 26, 2007, at approximately 8:30 a.m., plaintiff heard three pops in his right shoulder while plaintiff was doing dips in the prison exercise yard. (Dkt. Nos. 1 at 6,
¶ 13; 56 at 9, 12; 92-3 at 42.) Plaintiff walked to the medical annex. (Dkt. No. 56 at 11-12.) 4. Plaintiff was seen by a nurse at 8:45 a.m. on December 26, 2007. (Dkt. No. 56 at 16, 18.)
5. Plaintiff told the nurse that he heard two cracks while doing dips, and plaintiff complained of pain in his right shoulder, collar bone, and neck areas, and reported he was unable to lift his right arm due to pain in his shoulder. (Dkt. Nos. 55-10 at 2; 92-3 at 42.)
6. Dr. Basi treated plaintiff on December 26, 2007. (Dkt. No. 92-3 at 42.) 7. At approximately 9:15 a.m., on December 26, 2007, Dr. Basi ordered x-rays of plaintiff's right clavicle and right shoulder. (Dkt. Nos. 56 at 18; 55-10 at 2.)
8. At approximately 9:15 a.m., on December 26, 2007, Dr. Basi prescribed 60 mg Toradol intramuscularly for control of plaintiff's pain. (Dkt. Nos. ...