Opinion
No. Civ S-02-1235 DFL GGH P.
October 13, 2005
FINDINGS RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' summary judgment motion filed March 24, 2005. For the following reasons, the court recommends that defendants' motion be granted.
This action is proceeding on the amended complaint filed February 20, 2003. The defendants are Warden Ramirez-Palmer, Chief Medical Officer Andreason and Dr. Athanassious. Plaintiff alleges that he received inadequate medical care in violation of the Eighth Amendment when defendants delayed in providing him with hernia surgery.
Plaintiff also argued that he had a constitutional right to compel defendants to send him for outside treatment because an earlier procedure went poorly. This claim has been dismissed.See March 10, 2004, findings and recommendations; May 7, 2004, order by district court.
In the pending motion, defendants argue that they did not act with deliberate indifference to plaintiff's medical needs. See Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970 (1994) (to succeed on Eighth Amendment claim based on inadequate medical care, prisoner must demonstrate that prison officials acted with deliberate indifference to his serious medical needs). Defendants observe that plaintiff repeatedly refused a surgical consult for his hernia. When plaintiff finally consented to the surgical consult, defendants argue that his other medical problems caused the surgery to be delayed. Defendants argue that when it was determined that surgery was appropriate, plaintiff was sent to Queen of the Valley hospital where the surgery was performed. In support of their motion, defendants submitted the declarations of defendants, 46 pages from plaintiff's medical records and copies of administrative appeals filed by plaintiff regarding this matter.
On April 18, 2005, plaintiff filed an opposition to defendants' summary judgment motion. Plaintiff argued that the motion should be denied as untimely. Plaintiff did not address the merits of defendants' motion. On May 13, 2005, the court issued an order stating that defendants' motion was timely filed. The court granted plaintiff thirty days to file an opposition addressing the merits of defendants' motion.
On May 25, 2005, plaintiff filed a one and one-half page opposition which consists of the following argument:
1. The factual medical issues giving rise to the Civil cause of action are genuinely safeguarded by the Fourteenth Amendment.
2. This Hon. Court's records exhibits the poorly operation Dr. Athanassious performed constituted Mal-Practice into deliberate difference removing the tumor inside (CMF) and thereafter, another hernia return in plaintiff stomach by the size of a football. It's obvious, why Plaintiff asks for the outside.
3. Plaintiff further asserts if there was ever a case of urgency exists? It's in his case. Plaintiff stomach has growing so big, the skin around Plaintiff naval was busting loose in his stomach.
The Civil Rights of Institutionalized Persons Act hereinafter "CRIPA" give this honorable court the power and authority under CRIPA. Allows the court to order some professional help outside medical specialist consultation.
Therefore, the true facts in this case is a matter of the courts records. It's defendants attorney that's filing meritless motions trying to get plaintiff's complaint dismiss.
Plaintiff attaches no evidence to his opposition. Nor does the opposition refer the court to any specific evidence in the record.
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
Under summary judgment practice, the moving party
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986) (quoting Fed.R.Civ.P. 56(c)). "[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.'" Id. 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, 106 S. Ct. at 2552. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should 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, 106 S. Ct. at 2553.
If the 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, 106 S. Ct. 1348, 1356 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its 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. See Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11, 106 S. Ct. at 1356 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, 106 S. Ct. 2505, 2510 (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. 1987).
Pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), on April 30, 2003, the court issued an order specifically advising plaintiff of his duties in opposing summary judgment motions. The court told plaintiff how he could show proof of his claims. For example, plaintiff could rely on affidavits or declarations setting forth the facts that plaintiff believed prove his claims. April 30, 2003, order, p. 4.
By failing to put forward any evidence plaintiff has not met his burden in opposing defendants' summary judgment motion. In effect, plaintiff is tasking the court with being his advocate. Plaintiff expects the court to go through the record, including the large number of exhibits submitted by defendants, to determine if there is any merit to his case.
The Ninth Circuit has stated that pro se litigants must follow the same rules of procedure that govern other litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (waiver of originally pled but omitted causes of action in amended complaint). As a general rule, the judge does not have to scour the record in efforts to find evidence which might defeat summary judgment, i.e., the litigant must supply the needed evidence within the motion or opposition. See Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir. 2001) (stating the rule for represented parties: "Other circuits are not unanimous, but Forsberg is both binding on us and consistent with the majority view that the district court may limit its review to the documents submitted for the purposes of summary judgment and those parts of the record specifically referenced therein); but see Jones v. Blanas, 393 F.3d 918, 922-923 (2004) ("[b]ecause Jones is pro se, we must consider as evidence in his opposition to summary judgment all of Jones contentions offered in motions and pleadings [signed under penalty of perjury].")
The undersigned will follow established law, and not interject himself into the lawsuit as an advocate for the pro se plaintiff, be that advocacy on procedural or substantive grounds. Because plaintiff has not submitted any admissible evidence in his opposition to defendants' summary judgment motion, and because he must follow the same rules as represented parties, defendants' motion should be granted.
Accordingly, IT IS HEREBY RECOMMENDED that defendants' summary judgment motion filed March 24, 2005, be granted.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).