United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
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. ECF No. 271. For the reasons stated hereafter,
it is recommended that defendant’s motion for summary
judgment be granted.
Plaintiff’s Unauthorized Oppositions
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, &
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” 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 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.
Summary Judgment Standard
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.
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.
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.
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.
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.
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 ...