The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Document 32)
Plaintiff Policarpio Medina ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 19, 2010. On March 14, 2011, the Court issued an order finding a cognizable Eighth Amendment deliberate indifference claims against Defendants Dr. Chen, Dr. Shittu, Chief Medical Officer Dr. Sherry Lopez and Psychiatrist Technician Mean, and a First Amendment retaliation claim against Defendant Dr. Chen. Plaintiff filed a First Amended Complaint ("FAC") on April 7, 2011, alleging the Eighth Amendment and First Amendment claims, as well as claims for medical malpractice and intentional infliction of emotional distress against Dr. Chen.*fn1
On July 23, 2012, Defendants filed this motion for summary judgment.*fn2
On October 9, 2012, after Plaintiff failed to file an opposition, the Court ordered Plaintiff to either file an opposition to the motion, or a statement of non-opposition, within 21 days. On October 24, 2012, Plaintiff filed a request for a 60 day extension of time. He indicated that he was working on his opposition, but needed additional time to complete it. The Court granted his request on October 29, 2012. On December 26, 2012, Plaintiff requested an additional 30 day extension, explaining that he had undergone back surgery on November 16, 2012, and was continuing to recover. On December 27, 2012, the Court granted the request and informed Plaintiff that no further extensions would be granted without a showing of good cause. More than 30 days have passed and Plaintiff has not filed an opposition, a statement of non-opposition, or otherwise communicated with the Court. Accordingly, the motion is deemed submitted pursuant to Local Rule 230(l).
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 Los Angeles, 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)).
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).
The instant motion for summary judgment is unopposed. A district court may not grant a motion for summary judgment solely because the opposing party has failed to file an opposition. Cristobal v. Siegel, 26 F.3d 1488, 1494--95 & n. 4 (9th Cir.1994) (unopposed motion may be granted only after court determines that there are no material issues of fact). The Court may, however, grant an unopposed motion for summary judgment if the movant's papers are themselves sufficient to support the motion and do not on their face reveal a genuine issue of material fact. Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir.1993) (same).
Plaintiff did not file an opposition, and Defendants' statement of facts is therefore considered undisputed.*fn3
Plaintiff has been in the Mental Health Care Delivery System at the Correctional Clinic Case Management System throughout his incarceration, and he has been diagnosed with major depressive disorder, post-traumatic stress syndrome and anxiety. Pl.'s Dep. 11:9-25.
Plaintiff arrived at Kern Valley State Prison ("KVSP"), where the events complained of occurred, in November 2005. Pl.'s Dep. 16:19-21. Prior to arriving at KVSP, Plaintiff was prescribed ibuprofen and naproxen for lower back pain. Pl.'s Dep. 30:21-25.
After arriving at KVSP, Plaintiff continued to receive ibuprofen and naproxen for lower back pain. Pl.'s Dep. 31:1-3. Plaintiff requested to see a doctor and informed the doctor that his pain medication was not working. His medication was changed to Robaxin for 90 days. Pl.'s Dep. 32:5-11.
On November 8, 2007, Plaintiff underwent a lumbar spine x-ray, which was normal. Defs.' Ex. A, at 322. Plaintiff reported that the Robaxin did not have any effect on his pain. Pl.'s Dep. 32:12-25.
On December 10, 2007, Plaintiff saw Dr. Chen for the first time. Plaintiff complained of lower back pain and Dr. Chen prescribed Salsalate. Defs.' Ex. A, at 53; Chen Decl. ¶ 2.
Plaintiff returned to Dr. Chen on January 7, 2008. He complained of lower back pain and radiculopathic pain. Dr. Chen prescribed Gabapentin. Defs.' Ex. A, at 50; Chen Decl. ¶ 3.
On March 8, 2008, Plaintiff saw Dr. Chen and reported that the pain was better. Plaintiff asked to increase the Gabapentin dose, and Dr. Chen increased it. Defs.' Ex. A, at 44; Chen Decl. ¶ 4. On March 26, 2008, Plaintiff was referred to physical therapy for his lower back pain. Defs.' Ex. A, at 43; Chen Decl. ¶ 5.
On April 17, 2008, Plaintiff returned to Dr. Chen and complained of severe pain in his lower back. Dr. Chen increased Plaintiff's Gabapentin dose. Defs.' Ex. A, at 42; Chen Decl. ¶ 5.
Plaintiff returned to Dr. Chen on May 19, 2008. Plaintiff reported that he still had lower back pain and that the medication was ineffective. Defs.' Ex. A, at 39, 123; Chen Decl. ¶ 6. Plaintiff told Dr. Chen that he had taken Tramadol at another prison, that it was helpful, and that he wanted to get back on it. Defs.' Ex. A, at 123; Chen Decl. ¶¶ 6,7. Plaintiff also told Dr. Chen that he had filed a "602" because the medication prescribed was not helping his pain. Chen Decl. ¶ 7. On May 19, 2008, Dr. Chen prescribed 50 mg. of Tramadol for six ...