United States District Court, E.D. California
GARY R. XAVIER, Plaintiff,
S. M. ROCHE, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, has filed this civil
rights action seeking relief under 42 U.S.C. § 1983.
This action proceeds on the Fourth Amended Complaint filed
May 19, 2014, in which plaintiff alleges that medical staff
at High Desert State Prison (“HDSP”) were
deliberately indifferent to his serious medical needs
following surgery on plaintiff’s finger in 2006. (ECF
No. 74 (“FAC”).) The court found the FAC to state
cognizable claims against defendants Weaver (formerly French)
and Friend. (ECF No. 77.)
the court is defendants’ January 13, 2015 motion for
summary judgment (ECF No. 114), which has been briefed by the
parties (ECF Nos. 119 & 120). For the reasons discussed
below, the undersigned will recommend that defendants’
motion be granted in part and denied in part.
Summary Judgment Standards Under Rule 56
judgment is appropriate when it is demonstrated 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). A party asserting that a fact cannot be
disputed must support the assertion by “citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions,
interrogatory answers, or other materials. . .”
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 Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “[A] complete
failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other
facts immaterial.” Id.
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 does exist. See
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 allegations or denials of their 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 or show
that the materials cited by the movant do not establish the
absence of a genuine dispute. 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.
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 Fed.R.Civ.P. 56(e) advisory committee’s note
on 1963 amendments).
resolving the summary judgment motion, 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 587 (citation omitted).
verified complaint, plaintiff alleges as follows:
relevant times, plaintiff was an inmate at HDSP, where Weaver
worked as a nurse practitioner and Friend as a registered
nurse. (FAC, ¶¶ 4-7.) On May 30, 2006, plaintiff
underwent surgery to repair a fractured joint in the ring
finger of his right hand. (Id., ¶¶ 9-10.)
“The surgery was performed . . . with no complications
or serious side effects.” (Id., ¶ 10.)
Plaintiff returned to HDSP that day with post-operative