The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND 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 first amended complaint, filed April 29, 2011. Plaintiff alleges that defendants Dr. Traquina, L. Austin, and L. Mefford were deliberately indifferent to plaintiff's serious medical needs by delaying the scheduling of plaintiff's back surgery. On June 7, 2012, plaintiff filed a motion for summary judgment. On June 27, 2012, defendants filed a motion for summary judgment. As explained below, the court recommends that defendants' motion for summary judgment be granted, and plaintiff's motion be denied.
II. Plaintiff's Allegations
Plaintiff is proceeding on the verified amended complaint filed April 29, 2011, alleging that defendants were deliberately indifferent to plaintiff's serious medical needs by delaying the scheduling of plaintiff's back surgery. (Dkt. No. 8.) Plaintiff alleges the following:
On January 27, 2009, Dr. Nguyen ordered an urgent MRI for plaintiff's back injury. On January 28, 2009, Dr. Rallos discussed plaintiff's case with Dr. Traquina, Chief Medical Officer, who is responsible for scheduling outside surgeries. Defendants Austin and Mefford are also responsible for scheduling outside surgeries. The January 28, 2009 MRI revealed plaintiff was suffering from spinal injury. Dr. Rallos ordered an urgent consultation to neurosurgery. Suzanne Silva, LVN, outside scheduling, issued an urgent notice to put plaintiff on Dr. Huffman's schedule for February 9, 2009. On February 9, 2009, Dr. Huffman ordered x-rays of plaintiff's lumbar spine, and reviewed plaintiff's MRI report which "showed collapse of the disc space, dehydration of the intervertebral disc at L4-5, at L3-4, and loss of disc height at L2-3." (Dkt. No. 8 at 5.) On the Forensic clinic follow-up consultation, Dr. Huffman found plaintiff was suffering from right lower extremity sciatica, limp, pain causing difficulty with ambulation, and sleep difficulty due to the pain, and weakness. Plaintiff alleges defendant Huffman told plaintiff that he needed surgery, and that plaintiff agreed to the surgery. (Id. at 6.) Plaintiff alleges that on many occasions between February and May 2009, he continued to complain to prison medical officials that he was in pain, and that he needed his back surgery. (Id.) Plaintiff alleges he completed health care services request forms and 602 appeals to obtain back surgery due to his pain and suffering. Plaintiff alleges defendants were responsible to timely schedule plaintiff's back surgery, and their delay in timely scheduling the back surgery amounts to deliberate indifference to plaintiff's serious medical needs. (Id.)
III. Defendants' Motion for Summary Judgment
Defendants move for summary judgment on the grounds that there are no genuine issues of material facts, that plaintiff's claims are improperly based on theories of respondeat superior and/or vicarious liability, and that defendants are entitled to qualified immunity; thus, defendants contend they are entitled to judgment as a matter of law. Plaintiff filed an opposition, and defendants filed a reply. (Dkt. Nos. 87, 88.) On July 25, 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 August 17, 2012, plaintiff filed a response stating he would rely on his original opposition. (Dkt. No. 91.) In his 212 page opposition, plaintiff provided a declaration signed under penalty of perjury. (Dkt. No. 87 at 33-37.)
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 May 31, 2011, and July 25, 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. 12, 89); 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") in 2009.
2. Defendant Austin is the Chief Executive Officer of Health Care Services at CSP-Solano. She has worked for the California Department of Corrections and Rehabilitation for approximately two and one half years. (Ex. C to Appendix, Austin Decl. ¶2.)
3. As Chief Executive Officer of Health Care Services, defendant Austin works under the leadership of the Regional Administrator. She is responsible for planning, organizing, and coordinating delivery of a multi-functional health care system. The system features a full range of medical, mental health, dental, pharmacy and medication management, specialized care and clinic services, and allied health. She serves as the Department's and the Medical Receiver's principal advisor on the institution's specific application of health care policies and procedures. (Ex. B to Appendix, Austin Decl. ¶3.)
4. Defendant Mefford is the Correctional Health Services Administrator II at CSP-Solano. (Ex. B to Appendix, Mefford Decl. ¶2.)
5. As the Correctional Health Services Administrator, defendant Mefford has supervisory authority over the ancillary service areas of the health care department, such as the laboratories, radiology department, and medical records. Additionally, she supervises the administrative aspects of the health care department, such as departmental budgets, and inmate medical administrative grievances. She has held this position for approximately six years. (Ex. B to Appendix, Mefford Decl. ¶3.)
6. Since March of 2003, defendant Dr. Traquina has served as the Chief Medical Officer ("CMO") at CSP-Solano. Dr. Traquina received his medical license from the State of California in 1980, and is certified as a specialist by the American Board of Surgery.
7. As the Chief Medical Officer, Dr. Traquina plans, organizes, and directs the medical, dental, psychiatric, and clinical services for the care and treatment of inmates housed at the prison; he plans and assigns work; supervises admissions, assigns cases to physicians, checks case histories and progress; examines, diagnoses, prescribes, and administers treatment; performs minor surgeries and supervises postoperative care of patients; diagnoses cases; prescribes medical and surgical treatment; directs the clinical and pathological work and orders examinations and analyses, x-rays, dental work, special diets, and medications; conducts staff conferences and in services training; exercises expenditure controls for equipment and supplies; prepares the institution health care budget; develops and implements the long range planning of health care programs; establishes and approves local health care policy and procedure; and prepares comprehensive medical reports.
8. On January 22, 2009, plaintiff submitted a CDC Form 7362, Request for Health Care Services form, complaining of excruciating pain in his right leg. (Ex. A to Appendix, Traquina Decl. ¶5; Dkt. No. 87 at 49.)
9. On January 23, 2009, plaintiff was issued a chrono for a lower bunk and to have a wheelchair for two weeks. (Dkt. No. 87 at 53.) Dr. Traquina approved the chrono on February 5, 2009. (Id.)
10. Plaintiff was examined by a Registered Nurse on January 25, 2009, who reported that plaintiff was unable to ambulate due to leg and hip pain. (Ex. A to Appendix, Traquina Decl. ¶6.)
11. Plaintiff completed another 7362 on January 26, 2009, complaining of pain in his right leg for the past two weeks, which he ranked ten on a scale of one to ten. (Ex. A to Appendix, Traquina Decl. ¶7; Dkt. No. 87 at 55.) Plaintiff had cramps and spasms, and was unable to walk on the leg.
12. On January 26, 2009, Dr. Noriega examined plaintiff, assessing muscle spasms in the lower back and thigh, and prescribed an injection of Toradol and Robaxin. (Dkt. No. 87 at 64.)
13. On January 28, 2009, plaintiff received an MRI of the lumbar spine and hip, which revealed degenerative disc disease. (Ex. A to Appendix, Traquina Decl. ¶8.)
14. On January 28, 2009, plaintiff was issued a chrono for a ground floor cell and crutches for one month, and a bottom bunk for six months. (Dkt. No. 87 at 66.) Dr. Traquina approved this chrono on February 5, 2009. (Id.)
15. On January 29, 2009, treating Dr. Nguyen of CSP-Solano requested an urgent referral for plaintiff to see an orthopedic surgeon, noted that he discussed plaintiff's case with Dr. Traquina on January 28, 2009, and also authorized surgery if the orthopedic surgeon recommended it.*fn3 (Ex. A to Appendix, Traquina Decl. ¶9, Ex. D.) Near the bottom of the Request for Services Form, follow-up is circled, and Dr. Nguyen wrote: "for ? surgical planning after MRI. *Please send Films." (Id., Ex. D.) Dr. Traquina declares that this notation indicates that surgery was authorized by the prison on January 29, 2009. (Ex. A to Appendix, Traquina Decl. ¶9.)
16. On January 29, 2009, Suzanne Silva, LVN, from CSP-Solano outside medical scheduling, faxed an urgent request for plaintiff to be seen by Dr. Huffman on February 9, 2009. (Id., Ex. E, Dkt. No. 1 at 38.) The appointment with orthopedic surgeon Dr. Huffman was confirmed on February 3, 2009. (Dkt. No. 1 at 45; Traquina Decl. ¶10.*fn4
17. On February 5, 2009, Dr. Traquina approved two "Comprehensive Accommodation Chronos" for plaintiff to receive lower bunk and ground floor housing, and access to a wheelchair and crutches. (Dkt. No. 87 at 53, 66.) The chrono form states that "[a] physician shall complete this form if an inmate requires an accommodation due to a medical condition." (Id.)
18. On February 8, 2009, a medical code was called on plaintiff. (Dkt. No. 87 at 78.) Plaintiff complained of pain from his lower back down to his toes, and acute spasms, and claimed he could not stand or walk. He was assessed as having acute lower back pain and impaired mobility, and given an injection of 60 mg. of Toradol. (Id.)
19. Plaintiff was examined by Dr. Huffman on February 9, 2009, who recommended surgery if supported by the MRI findings. Dr. Huffman noted that he needed the MRI to review. (Ex. A to Appendix, Traquina Decl. ¶11.)
20. In his written report, Dr. Huffman recorded plaintiff's present illness history as follows. (Dkt. No. 87 at 80.) Plaintiff hurt his back playing basketball. After the injury, plaintiff experienced increasing pain on the right side of his back over the next 24 hour period, radiating into his thigh, leg and foot. Plaintiff's pain was severe over the next two weeks, but then plaintiff received an injection of Toradol which helped somewhat. Plaintiff is now managing the pain but still has significant pain, which causes difficulty in walking, and causes a limp. Plaintiff cannot put weight on his right leg, and has difficulty sleeping. Plaintiff's pain is relieved by sitting and resting and by medications, but is exacerbated by ambulating. Motrin and Soma seemed to help. Dr. Huffman's recommendations state:
At this time, I would like to obtain the copies of the MRI films to review myself. The patient appears to have L3-4 foraminal stenosis which I suspect would give more L3 nerve root symptoms and his symptoms actually present as more L4-K5 nerve root symptoms on examination and history. If all the things are consistent, once I get a chance to personally review the MRI, I would consider decompression around the L4-L5 nerve roots. I discussed this with the patient and he is interested in surgical intervention if that is the case. At this time, my recommendation is to obtain the MRI. If the MRI is consistent with the history and clinical examination, then proceed with surgical micro decompression. If not, I will see the patient back for further examination. (Dkt. No. 1 at 50.)
21. On February 9, 2009, Dr. Nguyen approved a follow-up request for plaintiff to see Dr. Huffman regarding the collapse in his disc space. Dr. Nguyen noted that plaintiff did not have his January 28, 2009 MRI films with him when he was treated by Dr. Huffman on February 9, 2009, and requested they be sent with plaintiff for the follow-up. (Ex. A to Appendix, Traquina Decl. ¶13, Ex. G.) Dr. Nguyen said plaintiff should have a ...