The opinion of the court was delivered by: Honorable Candy W. Dale United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Now pending is Defendant Johanna Smith's Motion for Summary Judgment. (Dkt. 31.) Smith argues that there is no genuine dispute of material fact and no evidence demonstrating that she acted with deliberate indifference, and, as such, she is entitled to summary judgment as a matter of law. (Id. at 2). Cloward has not filed a response to Smith's Motion, and the deadline for a response, January 3, 2012, has expired. After reviewing Smith's arguments, case law, and the record in this matter, the Court will grant the motion and dismiss Cloward's Complaint.*fn1
Plaintiff Jerry Cloward is a prisoner in the custody of the Idaho Department of Correction (IDOC), currently incarcerated at the Idaho Correctional Institution in Orofino (ICI-O).(Initial Review Order, Dkt. 9, p. 1.) Cloward initiated the underlying lawsuit on March 22, 2010. (Complaint, Dkt. 3.)
In his Complaint, Cloward alleges that he developed a severe back problem on or about March 20, 2009. (Dkt. 3, p. 3.) On May 12, 2009, an MRI scan was performed on Cloward's back, and, in October 2009, Dr. Thomas C. Manning recommended back surgery. (Id.) After that date, Cloward saw several prison physicians and physician assistants who treated his back problems with pain medication and other non-surgical treatment. (Id.) Cloward's Complaint, filed in March 2010, asserts that Defendants were deliberately indifferent for failing to provide the surgery, and requested that the prison be ordered to have the surgery performed to repair his back and compensate him with monetary damages. On May 12, 2012, two months after he filed his Complaint, Cloward had the surgery he was requesting. (Exhibit C to Smith Affidavit, Dkt. 31-3.)
It its Initial Review Order, the Court allowed Cloward to proceed with his medical deliberate indifference claim under the Eighth Amendment, and dismissed his claims brought under the First Amendment, Fourteenth Amendment, and Americans with Disabilities Act. (Dkt. 9.)
A. Standards of Law Governing Summary Judgment
Summary judgment is appropriate where a party can show that, as to any claim or defense, "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). One of the principal purposes of the summary judgment rule "is to isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). To carry this burden, the moving party may "cit[e] to particular parts of materials in the record," show that "the materials cited do not establish the . . . presence of a genuine dispute, or show that the "adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A) & (B). The Court must consider "the cited materials," but it may also consider "other materials in the record." Fed. R. Civ. P. 56(c)(3).
If the moving party meets its initial burden, the burden shifts to the non-moving party to produce evidence sufficient to support a jury verdict in his favor. Anderson, 477 U.S.at 256-57. The non-moving party must go beyond the pleadings and show "by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324 (internal quotation marks omitted).
The Court does not determine the credibility of affiants or weigh the evidence set forth by the non-moving party. On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The existence of a scintilla of evidence in support of the non-moving party's position is insufficient. Rather, "there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. If a party "fails to properly support an assertion of fact or fails to properly address another party's assertion of fact," the Court may consider that fact to be undisputed. Fed. R. Civ. P. 56(e)(2). The Court may grant summary judgment for the moving party "if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it." Fed. R. Civ. P. 56(e)(3).
Cloward brings his claim under 42 U.S.C. § 1983, the civil rights statute. To make a claim under § 1983, a plaintiff must show the existence of four elements: "(1) a violation of rights protected by the Constitution or created by federal statute (2) proximately ...