Lal v. Felker

          ORDER AND FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendant B.G. Flores (hereafter “defendant”) has filed a motion for summary judgment.^[1] ECF No. 271.^[2] For the reasons stated hereafter, it is recommended that defendant’s motion for summary judgment be granted.

         I. Plaintiff’s Unauthorized Oppositions

         As a preliminary matter, the court will address the unauthorized oppositions (ECF Nos. 280, 282, & 284) which plaintiff filed after the submission of defendant’s reply. Neither the Federal Rules of Civil Procedure nor this district’s Local Rules entitle a party to a surreply as a matter of right. Instead, the Local Rules provide for a motion, a response in opposition to the motion, and a reply. See E.D. Cal. L. R. 230(b)-(d), (l). The court may, in its discretion, allow a surreply “where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v. England, 2005 U.S. Dist. LEXIS 29357, 2005 WL 3031136, at *1 (E.D. Cal. Nov. 8, 2005). Those circumstances are not implicated here and plaintiff did not ask the court’s permission prior to submitting either surreply. Plaintiff argues that his surreplies were necessary because defendant filed an unauthorized surreply of his own. ECF No. 282 at 1. He is mistaken, however. Defendant was entitled to submit a reply brief and properly filed one. ECF No. 279. At that point, the matter stood submitted and no further filings were permitted absent leave of the court. Local Rule 230(l). Accordingly, the court will strike plaintiff’s unauthorized surreplies and will consider only the content of the motion (and its attached exhibits), plaintiff’s first opposition to the motion, and defendant’s reply (ECF Nos. 271-272, 278, & 279).

         II. Plaintiff’s Complaint

         This action proceeds based on plaintiff’s amended complaint filed May 5, 2008. ECF No. 14. He is an inmate in the custody of the California Department of Corrections and Rehabilitation and was housed at the High Desert State Prison when the events giving rise to this action allegedly occurred. Id. ¶¶ 8 & 19. The parties do not dispute that plaintiff has an extensive history of treatment for Type 2 diabetes mellitus. ECF No. 271-2 ¶¶ 13-19; ECF No. 278 at 3. At the times relevant to this lawsuit, plaintiff’s treatment plan included twice daily (morning and evening) blood glucose checks. ECF No. 14 ¶¶ 22, 26. Plaintiff claims that from approximately June 2006 until October 2006, he was not “called out”^[3] to the unit clinic for evening blood glucose checks on numerous occasions. Id. ¶¶ 23-33. He alleges that the defendant, a Medical Technical Assistant (“MTA”), was responsible for ensuring that some^[4] of these call-outs occurred. Id. ¶¶ 24-25, 29, 33. As a result of these missed call-outs, plaintiff claims that he was given insufficient insulin to control his diabetes and now suffers from permanent nerve damage (neuropathy) to his feet and legs. Id. ¶¶ 34, 39. Finally, plaintiff alleges that he filed administrative grievances against the defendant in June and August of 2006 and that the failure to issue these call-outs was retaliatory. Id. ¶¶ 24-25, 29, 34.

         III. Legal Standards

         A. Summary Judgment Standard

         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 Corp. 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. 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 opposing party must be such that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson, 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.

         The court does not determine witness credibility. It believes the opposing party’s evidence, and draws inferences most favorably for the opposing party. See Id. at 249, 255; Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air, ” and the proponent must adduce evidence of a factual predicate from which to draw inferences. American Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand, 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 ...