United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a California prisoner proceeding pro se with a civil
action. On January 28, 2016, the court screened
plaintiff's first amended complaint, as the court is
required to do under 28 U.S.C. § 1915A, and found
service of process appropriate for defendants Yun and Sabin
with respect to claims arising under the Eighth Amendment and
for negligence under California law. All claims concern
denial of adequate medical care. Defendant Sabin and
Yun's motion for summary judgment as to the Eighth
Amendment claims is before the court.
amended complaint (ECF No. 15), which is signed under the
penalty of perjury, plaintiff alleges that on May 8, 2013,
plaintiff was treated at the University of California at San
Francisco Hospital (UCSF) for a burn on his right upper
thigh. The treatment included a skin graft from his lower
stomach to his right upper thigh. On May 21, 2013, plaintiff
was released from UCSF to the California Medical Facility
(CMF). According to plaintiff, when he was released to CMF,
doctors at UCSF sent orders with him indicating that
plaintiff should return to UCSF in 10 days for a follow up,
and that his wounds were not to be disturbed until he
returned to UCSF.
plaintiff's arrival at CMF, he was placed in the
“G-2 hospital wing.” On or around May 22, 2013,
defendant Yun, a registered nurse whom plaintiff identified
by her name tag, visited plaintiff and indicated that she
would be changing the dressings on his wounds. Plaintiff
informed Nurse Yun that only the dressings on the wounds on
his left leg could be changed.Plaintiff said the dressing on his
right upper thigh and lower stomach could not be disturbed
until his 10 day follow-up. Plaintiff suggested that
defendant Yun check his medical records.
Yun insisted that she was told to change all of
plaintiff's dressings. Plaintiff was then given the
option of having all of his dressings changed or refusing
treatment altogether. Eventually, plaintiff agreed to have
all of his dressings changed.
to plaintiff, when defendant Yun removed the bandage on
plaintiff's right thigh, plaintiff's skin graft came
off causing plaintiff extreme pain and exposing a “big
circle of open human flesh.” Plaintiff immediately
asked to see a doctor, but Yun simply left the room. Other
nurses heard plaintiff screaming and administered treatment
until the on-call physician arrived.
alleges that defendant Dr. Sabin was plaintiff's primary
physician at CMF on May 22, 2013. He further alleges that Dr.
Sabin ordered defendant Yun to change the dressing on
plaintiff's right thigh, thereby ignoring the orders
received from UCSF.
Summary Judgment Standard Summary
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. . .” Fed.R.Civ.P. 56(c)(1)(A).
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 ...