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Kimpel v. Walker

United States District Court, Ninth Circuit

July 11, 2013

JAY G. KIMPEL, Plaintiff,
v.
DR. R. WALKER; P. JAYASUNDARA, N.P., Defendants.

ORDER: (1) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 56(c) [ECF No. 123]; and (2) DENYING MOTION TO APPOINT EXPERT WITNESSES AND MOTION TO USE ALL MEDICAL AND MENTAL RECORDS IN TRIAL [ECF Nos. 119, 121] AS MOOT

LARRY ALAN BURNS, District Judge.

I.

PROCEDURAL BACKGROUND

Jay Kimpel ("Plaintiff"), a former state prisoner, proceeding pro se and in forma pauperis, has filed this civil rights action pursuant to 42 U.S.C. ยง 1983. Defendants have filed a filed a Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [ECF No. 123]. The Court notified Plaintiff of the requirements for opposing summary judgment pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) [ECF No. 125]. Plaintiff has not filed an Opposition. On April 9, 2013, Plaintiff filed a notice of change of address and he was re-served with Defendants moving papers and the Court's Klingele/Rand notice. [ECF Nos. 126, 127.] The Court has determined that Defendants' Motion is suitable for disposition upon the papers without oral argument and that no Report and Recommendation from Magistrate Judge Jan M. Adler is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e).

II.

PLAINTIFF'S FACTUAL BACKGROUND[1]

On December 15, 2007, while incarcerated at the Richard J. Donovan Correctional Facility ("RJDCF") Plaintiff sought medical treatment for "unbearable pain." ( See SAC at 1, 3.) Plaintiff claims that he was examined by Defendants Walker and Jayasundara who refused to renew pain medication that had been prescribed for him by a different doctor. ( Id. ) Plaintiff claims that Defendants told him he was "faking it" and denied him any treatment. ( Id. )

Several months later, Plaintiff was being examined by Dr. Hunt[2] on June 24, 2008. ( Id. at 4.) Plaintiff claims that Defendant Jayasundara interrupted this examination and told Dr. Hunt that Plaintiff was a "big faker." ( Id. ) On July 7, 2008, Plaintiff alleges that Defendant Jayasundara refused to provide a wrist brace for Plaintiff that was ordered by Dr. Hunt. ( Id. at 5.)

III.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Summary judgment is properly granted when "there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). Entry of summary judgment is appropriate "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. v. Catrett, 477 U.S. 317, 322 (1986). The court shall consider all admissible affidavits and supplemental documents submitted on a motion for summary judgment. See Connick v. Teachers Ins. & Annuity Ass'n, 784 F.2d 1018, 1020 (9th Cir. 1986).

The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970). However, to avoid summary judgment, the nonmovant cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Rather, he must present "specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The Court may not weigh evidence or make credibility determinations on a motion for summary judgment. Quite the opposite, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Id. at 255; United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The nonmovant's evidence need only be such that a "fair minded jury could return a verdict for [him] on the ...


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