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United States District Court 7 Eastern District of California 8 9 Edward D Case 1:04-cv-06120-LJO -LJO Document 65 Filed 04/12/07 Page 1 of 8 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 EDWARD D. ASHFORD, CASE NO. 1:04-cv-06120-LJO-NEW (DLB) PC 10 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT’S MOTION 11 v. FOR SUMMARY JUDGMENT BE GRANTED 12 DR. JEFFREY NEUBARTH, M.D., (Doc. 50) 13 Defendant. / 14 15 I. Findings and Recommendations Addressing Defendant’s Motion for Summary Judgment 16 A. Procedural History 17 Plaintiff Edward D. Ashford (“plaintiff”) is a prisoner proceeding pro se and in forma 18 pauperis in this tort action filed on August 17, 2004. This is a diversity action, and is proceeding 19 against defendant Jeffrey Neubarth, M.D. (“defendant”) for medical malpractice, or negligence, in 20 violation of California law. (Doc. 23.) Defendant filed a motion for summary judgment on 21 September 7, 2006. (Doc. 50.) Plaintiff filed an opposition on December 8, 2006,1 and defendant 22 filed a reply and an objection to plaintiff’s evidence on January 22, 2007. (Docs. 55-58, 62-63.) 23 B. Legal Standard 24 Summary judgment is appropriate when it is demonstrated that there exists no genuine issue 25 as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. 26 Civ. P. 56(c). Under summary judgment practice, the moving party 27 1 Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment by the 28 court in an order filed on June 10, 2005. Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Doc. 31.) 1 Case 1:04-cv-06120-LJO -LJO Document 65 Filed 04/12/07 Page 2 of 8 1 [A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the 2 pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes 3 demonstrate the absence of a genuine issue of material fact. 4 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the 5 burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made 6 in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on file.’” 7 Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon 8 motion, against a party who fails to make a showing sufficient to establish the existence of an 9 element essential to that party's case, and on which that party will bear the burden of proof at trial. 10 Id. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party’s 11 case necessarily renders all other facts immaterial.” Id. In such a circumstance, summary judgment 12 should be granted, “so long as whatever is before the district court demonstrates that the standard 13 for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323. 14 If the moving party meets its initial responsibility, the burden then shifts to the opposing 15 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 16 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence 17 of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is 18 required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery 19 material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 20 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that 21 might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 22 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 23 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 24 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 25 (9th Cir. 1987). 26 In the endeavor to establish the existence of a factual dispute, the opposing party need not 27 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 28 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 2 Case 1:04-cv-06120-LJO -LJO Document 65 Filed 04/12/07 Page 3 of 8 1 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 2 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 3 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 4 amendments). 5 In resolving the summary judgment motion, the Court examines the pleadings, depositions, 6 answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c). 7 The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable 8 inferences that may be drawn from the facts placed before the Court must be drawn in favor of the 9 opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 10 (1962) (per curiam). Nevertheless, inferences are not drawn out of the air, and it is the opposing 11 party's obligation to produce a factual predicate from which the inference may be drawn. Richards 12 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th 13 Cir. 1987). 14 Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show 15 that there is some metaphysical doubt as to the material facts. Where the record taken as a whole 16 could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for 17 trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 18 C. Undisputed Facts2 19 1. Plaintiff was at all times relevant an inmate incarcerated at the California Department of 20 Corrections and Rehabilitation (“CDCR”), Pleasant Valley State Prison (“PVSP”), Coalinga, 21 2 22 “Any party opposing a motion for summary judgment or summary adjudication shall reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those facts 23 that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission or other document relied upon in support of that denial.” Local Rule 56- 24 260(b). In this instance, plaintiff did not comply with the Local Rule. Therefore, defendant’s Statement of Undisputed Facts is accepted as true except where brought into dispute by plaintiff’s verified complaint and 25 declaration. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004); Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir. 1998). Plaintiff’s complaint and declaration are treated as opposing affidavits only to the extent that they set 26 forth admissible facts within plaintiff’s personal knowledge and not based merely on plaintiff’s belief, and to which plaintiff is competent to testify. Johnson, 134 F.3d at 1399-1400; McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th 27 Cir. 1987); Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985). Because plaintiff is not qualified to render an opinion regarding his medical diagnosis or the appropriate course of treatment, plaintiff’s complaint and declaration 28 are not sufficient to create a disputed issue of fact with respect to those issues. 3 Case 1:04-cv-06120-LJO -LJO Document 65 Filed 04/12/07 Page 4 of 8 1 California. 2 2. Defendant is licensed by the Medical Board of California as a medical doctor. At all times 3 relevant, defendant was employed at PVSP, and is currently employed at California State 4 Prison, Corcoran. 5 3. Plaintiff has extensive keloids (scar tissue) on the left side of his face to his ear and neck 6 area. There are no abnormalities to his ear canal. 7 4. In defendant and Dr. Kushner’s opinions, based on their examination of plaintiff, plaintiff 8 suffers no significant hearing loss, and has no hearing disabilities. Plaintiff had no evidence 9 of fluid accumulation during examinations with defendant. 10 5. Plaintiff was examined on April 2, 2003, regarding removal of keloid scar tissue. Defendant 11 explained to plaintiff that CDCR would not cover the procedure as it was considered 12 cosmetic. 13 6. On June 10, 2003, plaintiff was seen by Dr. Salazar regarding removal of keloid scar tissue, 14 and was again informed that CDCR did not cover cosmetic procedures. 15 7. On April 16, 2004, plaintiff was examined by Dr. Kushner, who requested an Ear, Nose and 16 Throat (“ENT”) consultation for evaluation of left ear canal and keloid scars. 17 8. Plaintiff’s ENT consult request was reviewed, and denied by the Medical Authorization 18 Review (“MAR”) Committee because there was no medical necessity for the consult and it 19 was considered cosmetic only.
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