United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. The sole remaining defendant, Behroz Hamkar, moves for summary judgment. ECF No. 41. Hamkar also moves to strike some of plaintiff's evidence submitted in opposition the motion. ECF No. 46. For the reasons that follow, the motion to strike is granted but summary judgment must be denied.
Plaintiff's verified complaint alleges the following facts: On January 2, 2011, plaintiff's left knee was in such a state-swollen to four times the size of his right knee-that plaintiff could not walk. ECF No. 1 at 3, 4. He told a nurse at the prison (California State Prison, Sacramento, or "CSP-Sac") medical clinic that he could not walk and asked for crutches. Id. at 3. Plaintiff was returned to his housing unit via wheelchair after being told he needed a doctor's order. Id. He was also issued "a 115 Rules violation report for manipulation of staff...." Id.
The following day, January 3rd, plaintiff was summoned to see defendant, Dr. Behroz Hamkar. Id. at 3-4. Plaintiff told Dr. Hamkar that he was injured and showed him his left knee. Id. at 4. Dr. Hamkar told plaintiff that he had called plaintiff in to let him know that he would be responding in writing to an inmate appeal plaintiff had filed against Dr. Hamkar. Id. Dr. Hamkar said he could not see plaintiff at that time regarding the knee injury. Id. Plaintiff alleges that this refusal was motivated by and in retaliation for plaintiff's administrative complaint against Dr. Hamkar. Id.
On January 10, 2011, Dr. Hamkar saw plaintiff for his knee injury and provided him with: (1) crutches, (2) naproxen for swelling, and (3) an appointment for an x-ray. Id. Plaintiff alleges that these things should have been provided on January 3rd. Id. On January 12, 2011, plaintiff received an x-ray. Id. On January 24, 2011, Dr. Robert Bemrick found, on reading the x-ray, that plaintiff was "at risk for ligament damage, " but according to plaintiff Dr. Hamkar ignored this information. Id. Dr. Hamkar diagnosed plaintiff with knee strain and prescribed physical therapy. Id. Plaintiff questioned the diagnosis without Dr. Hamkar having taken an MRI suggested by Dr. Bemrick to assess the potential ligament damage, but Dr. Hamkar ignored the suggestion. Id.
On February 14, 2011, Dr. Dillion ordered an MRI for plaintiff, "as a result of [plaintiff's] 602 complaint." Id. The MRI was performed on March 8, 2011, and revealed that plaintiff had "major multiligamentous injuries." Id. at 4, 8. On March 14, 2011, plaintiff went to an orthopedic consultation with Dr. Dowbak at San Joaquin General Hospital. Id. at 4. Dr. Dowbak suggested that plaintiff either undergo surgery or use a double-hinged knee brace with physical therapy. Id. Although plaintiff opted for the brace and therapy he was not allowed to have the double-hinged brace, because it has metal in it. Id. at 4-5. Plaintiff claims this treatment was unfair because other inmates had double-hinged braces with metal. Id. Ultimately, Dr. Dillion ordered plaintiff a neoprene brace with Velcro on April 18, 2011. Id. at 5.
After plaintiff filed an inmate grievance about not receiving the proper brace, Dr. Hamkar called plaintiff to his office on June 9, 2011 and told plaintiff that Dr. Hamkar would order the brace. Id. Dr. Hamkar also formally responded to the 602 grievance on June 29, 2011 by saying he would order the proper brace. Id. When plaintiff had not received the brace after 60 more days, he asked the patient advocacy liaison, R.N. Liuggi, why. Id. She told him that Dr. Hamkar had changed his mind and would not order the brace. Id. A second inquiry by plaintiff yielded the same response on October 5, 2011; Dr. Hamkar stated that plaintiff's knee injury did not "meet criteria of medical necessity." Id.
Plaintiff claims that Dr. Hamkar was not qualified to treat his knee injury and that the treatment he provided was deliberately indifferent in violation of the Eighth Amendment to the U.S. Constitution and that Dr. Hamkar refused him treatment in retaliation for his prison grievances in violation of the First Amendment. Id.
II. Defendant's Motions
A. Motion for Summary Judgment Standards
Summary judgment is appropriate when 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). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.
The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).
A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See, e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-24 ("[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.'"). 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. See id. at 322. In such a circumstance, summary judgment must 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.
To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'). Whether a factual dispute is material is determined by the substantive law applicable for the claim in question. Id. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.
Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute the evidence relied on by the ...