United States District Court, N.D. California
September 6, 2005.
CALVIN B. FEWS, Plaintiff,
Lieutenant PEREZ, Defendant.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This is a civil rights case filed pro se by a state prisoner.
Defendant has moved for summary judgment on the ground that there
are no material facts in dispute and that he is entitled to
judgment as a matter of law. Plaintiff has filed an opposition.
He also has filed a motion for production of documents. The
motions are submitted.
A. Request for production
Plaintiff has filed a request for production of documents,
despite being warned in an earlier order that he should not file
discovery requests with the court. The request for production
will be stricken.*fn1 See Fed.R.Civ.P. 5(d) (discovery
not to be filed with the court). B. Motion for summary judgment
1. Standard of Review
Summary judgment is proper where the pleadings, discovery and
affidavits show that there is "no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(c). Material facts are
those which may affect the outcome of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for a
reasonable jury to return a verdict for the nonmoving party.
The moving party for summary judgment bears the initial burden
of identifying those portions of the pleadings, discovery and
affidavits which demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323
(1986); Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
210 F.3d 1099, 1102 (9th Cir. 2000). When the moving party has met this
burden of production, the nonmoving party must go beyond the
pleadings and, by its own affidavits or discovery, set forth
specific facts showing that there is a genuine issue for trial.
If the nonmoving party fails to produce enough evidence to show a
genuine issue of material fact, the moving party wins. Id.
It is not the task of the district court to scour the record in
search of a genuine issue of triable fact. Keenan v. Allen,
91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the
burden of identifying with reasonable particularity the evidence
that precludes summary judgment. Id. If the nonmoving party
fails to do so, the district court may properly grant summary
judgment in favor of the moving party. Id.
Defendant contends that he is entitled to summary judgment
because (1) there is no genuine issue of material fact that he
was not deliberately indifferent to plaintiff's serious medical
need; and (2) he is entitled to qualified immunity. a. Declarations
Plaintiff has not supported his opposition with a declaration,
nor has he verified it so the opposition itself could serve as a
declaration. As a result, the only evidence in opposition to the
motion is plaintiff's complaint, which is verified. See
Schroeder v. McDonald, 55 F.3d 454, 460 & nn. 10-11 (9th Cir.
1995) (verified complaint may be used as an opposing affidavit
under Rule 56, as long as it is based on personal knowledge and
sets forth specific facts admissible in evidence).
The following is a summary of plaintiff's allegations in the
complaint. On February 18, 2003, plaintiff complained to staff in
his housing unit of a severe toothache. An officer called and
obtained an emergency dental appointment for the next day,
February 19, at 8:00 am. Plaintiff was given clove oil, a numbing
agent, and high-dose Motrin, a pain reliever. At 3:00 am on the
19th plaintiff was informed he was being transferred to Corcoran
State Prison. He informed staff that he could not travel because
of his pain and that dental surgery was scheduled. He was told he
would have to have a medical examination before he could be
removed from the bus list. He was taken to the infirmary for the
examination, where an MTA concluded he needed oral surgery.
Defendant then appeared on the scene, told him that San Quentin
was overcrowded, that he was not going to listen to any
complaints, and that plaintiff would have to get on the bus. When
plaintiff told defendant about the scheduled dental surgery,
defendant said that he did not care and that plaintiff was
getting on the bus. Defendant told him he would receive prompt
medical attention at Corcoran. In fact, however, he did not
receive dental care at Corcoran until March 5, 2003, although he
continued to receive the high-dose Motrin until then. He asserts
that he experienced "unbearable pain" until the surgery was
performed. Compl. at 3 & unnumbered supplemental page.
In his declaration, defendant Perez says that on February 19 he
was watch commander. At that time there was a standing order from
"the deputy warden" requiring that because of overcrowding, transfers could be postponed on
medical grounds only if the medical condition was "life
threatening." Defendant states that he did not have authority or
discretion to make exceptions to the rules for inmate transfers,
that his "professional responsibility" was to comply with the
standing order. He also says that it was not his professional
responsibility to arrange for or coordinate medical treatment.
When defendant was informed that plaintiff was at the infirmary
complaining of a toothache, he went there to determine whether
the condition was life-threatening, the only permissible reason
for delaying the transfer under the deputy warden's order.
Plaintiff informed him of the scheduled dental surgery and that
he had been given pain medication.
Defendant states that "[a]t San Quentin, it is standard
procedure for an inmate who is scheduled for medical treatment to
be given a medical ducat, which is confirmation both for custody
and medical staff that an inmate has in fact been scheduled at a
specific time for a specific medical appointment or medical
procedure. Without a ducat, medical treatment, such as the
surgery inmate Fews told me that he was supposed to have, may not
proceed." Defendant told plaintiff that since he did not have a
ducat, and could not receive medical treatment until he obtained
one, he likely would receive treatment as quickly at Corcoran as
at San Quentin.
Defendant concluded that Fews' condition was not
life-threatening and that, as a consequence, he would have to be
transferred. He explained to plaintiff that he would be examined
at Corcoran and that the medical facilities at Corcoran were
probably better than those at San Quentin. Defendant said all
this to plaintiff simply to better explain the situation. Fews
"indicated" that he understood.
Decl. of defendant Perez at 1-3.
The parties versions of the facts are not in substantial
conflict. Plaintiff, of course, does not include the fact that
the deputy warden had a standing order not to delay transfers on medical grounds unless the condition was
life-threatening, nor does he mention the ducat issue. He also
does not refer to it in his opposition, so even if the opposition
were verified there would be no genuine issue of fact on that
point. The closest thing to a dispute, really, is the implication
as to defendant's manner Fews' version has defendant insisting
that he was not going to listen to any complaints and that Fews
was going, period; whereas defendant Perez says he patiently
explained the situation to plaintiff. Arguably this might be
material to whether defendant was deliberately indifferent, so as
to this point the court will treat plaintiff's version as true.
b. Deliberate indifference to a serious medical need
Deliberate indifference to serious medical needs violates the
Eighth Amendment's proscription against cruel and unusual
punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976);
McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992),
overruled on other grounds, WMX Technologies, Inc. v. Miller,
104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of
"deliberate indifference" involves an examination of two
elements: the seriousness of the prisoner's medical need and the
nature of the defendant's response to that need. Id. at 1059.
A "serious" medical need exists if the failure to treat a
prisoner's condition could result in further significant injury
or the "unnecessary and wanton infliction of pain." Id. The
existence of an injury that a reasonable doctor or patient would
find important and worthy of comment or treatment; the presence
of a medical condition that significantly affects an individual's
daily activities; or the existence of chronic and substantial
pain are examples of indications that a prisoner has a "serious"
need for medical treatment. Id. at 1059-60. Serious medical
needs may include dental care. Hunt v. Dental Dep't,
865 F.2d 198, 200 (9th Cir. 1989).
A prison official is deliberately indifferent if he knows that
a prisoner faces a substantial risk of serious harm and
disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
The prison official must not only "be aware of facts from which
the inference could be drawn that a substantial risk of serious
harm exists," but he "must also draw the inference." Id. If a
prison official should have been aware of the risk, but was not,
then the official has not violated the Eighth Amendment, no
matter how severe the risk. Gibson v. County of Washoe,
290 F.3d 1175, 1188 (9th Cir. 2002).
Defendant contends that plaintiff has failed to state a claim.
Defendant does not, however, treat the complaint as true for
purposes of this argument, but rather contends that he was just
following orders and that in the absence of a ducat plaintiff
could not have received treatment that day anyway. Neither of the
crucial facts the deputy warden's order, the absence of a ducat
is alleged in the complaint. Therefore, defendant's argument on
this point is really that there is no genuine issue of material
fact that he was not deliberately indifferent.
Most notably, defendant contends that he could not have been
deliberately indifferent because he was just following orders
that prisoners were to be transferred despite medical needs
unless the condition was life-threatening. However, the
definition of a serious medical need for constitutional purposes,
set out above, is nothing like as demanding a standard as
"life-threatening." Therefore it is possible for the
constitution's demands and those of authority to conflict for
instance, if an order like that here is applied to an inmate with
a non-life-threatening serious medical need.
In such circumstances the demands of the constitution must
prevail. "Since World War II, the `just following orders' defense
has not occupied a respected position in our jurisprudence, and
officers in such cases may be held liable under § 1983 if there
is a "reason why any of them should question the validity of that
order." O'Rourke v. Hayes, 378 F.3d 1201, 1210 n. 5 (11th Cir.
2004) (quoting Brent v. Ashley, 247 F.3d 1294, 1306 (11th Cir.
2001); c.f. California Attorneys for Criminal Justice v.
Butts, 195 F.3d 1039, 1049-50 (9th Cir. 2000) (denying qualified immunity to
defendants who interrogated suspects in violation of Miranda,
notwithstanding training material permitting such interrogations
and Supreme Court opinions allowing the use of such
interrogations for impeachment). Perhaps if the order were not
flagrantly unconstitutional the fact that it existed could be
considered in deciding whether a defendant's actions amounts to
deliberate indifference, but that issue does not arise here: It
is clearly established that prison workers may not be
deliberately indifferent to an inmate's serious medical needs,
serious medical needs defined not as conditions which are
life-threatening but as those which, among other things, would
result in "unnecessary and wanton infliction of pain."
McGuckin, 974 F.2d at 1059; see also Carey v. Nevada
Gaming Control Board, 279 F.3d 873, 881 (9th Cir. 2002)
(qualified immunity issue; defendants who act in reliance on a
state statute are generally presumed to act reasonably, even if
the statute is later found to be unconstitutional, but if the
statute is "patently violative of fundamental constitutional
principles," the officials may nevertheless be held liable).
Defendant is correct that no genuine issue exists as to the
facts, but incorrect that he is entitled to judgment as a matter
of law on the deliberate indifference prong.
As to the serious medical need prong, a medical need is serious
if the failure to treat a prisoner's condition could result in
further significant injury or the "unnecessary and wanton
infliction of pain." McGuckin, 974 F.2d at 1059. The only clear
statement in plaintiff's papers that he was in pain at San
Quentin, aside from the implication from his needing emergency
dental surgery, is his statement that "because of the pain
petitioner [sic] was in, and the [scheduled] emergency dental
surgery . . ., he was unable to travel." Compl. at 3. He also
asserts that he "experienced unbearable pain until the decayed
tooth was removed on 3/3/03," id. at unnumbered page 3a, but it
is unclear whether this sentence refers to when he was at San
Quentin or only to the period between when he arrived at Corcoran and when the tooth was pulled. Against this
is the fact that he had been given clove oil, which he describes
as a numbing agent, and high-dose Motrin. On balance, although
there is no genuine issue of fact as to this prong, defendant has
failed to establish that he is entitled to judgment as a matter
of law on this prong.
As to defendant's contention in his declaration that plaintiff
could not have received medical attention at San Quentin that day
because he did not have a ducat, there is no evidence as to how
long it takes to get a ducat or what procedure is followed in
issuing them. Although it is undisputed that plaintiff did not
have a ducat, the absence of any evidence as to whether he might
have yet gotten one if he had not been transferred leaves open
the question of whether the transfer in fact caused plaintiff to
suffer additional pain. The conversation between Fews and
defendant occurred around 3:00 am; defendant does not say that
plaintiff could not have obtained the ducat in time to have the
surgery at 8:00, although his telling plaintiff that since he did
not have a ducat he probably would be seen as quickly at Corcoran
as at San Quentin might be taken to imply this. It may be that
because the dental work had only been scheduled the previous day,
the medical department intended issuing the ducat that morning;
nothing in the evidence supports or rebuts that possibility.
Finally, defendant's declaration says that medical procedures
"may not" proceed without a ducat. This is ambiguous, in that
"may not" could mean "is not permitted," but also could mean
"might or might not." Thus defendant has not even established
that the procedure would not have been performed without the
ducat. Defendant has failed to establish that he is entitled to
judgment as a matter of law on this point.
c. Qualified immunity
The defense of qualified immunity protects "government
officials . . . from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The rule of qualified
immunity "`provides ample protection to all but the plainly
incompetent or those who knowingly violate the law;'" defendants
can have a reasonable, but mistaken, belief about the facts or
about what the law requires in any given situation. Saucier v.
Katz, 533 U.S. 194, 202 (2001) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)). "Therefore, regardless of whether the
constitutional violation occurred, the [official] should prevail
if the right asserted by the plaintiff was not `clearly
established' or the [official] could have reasonably believed
that his particular conduct was lawful." Romero v. Kitsap
County, 931 F.2d 624, 627 (9th Cir. 1991). Qualified immunity is
particularly amenable to summary judgment adjudication. Martin
v. City of Oceanside, 360 F.3d 1078, 1081 (9th Cir. 2004).
The threshold question is: Taken in the light most favorable to
the party asserting the injury, do the facts alleged show the
officer's conduct violated a constitutional right? Saucier,
533 U.S. at 201. If no constitutional right would have been violated
were the allegations established, there is no necessity for
further inquiries concerning qualified immunity. Saucier,
533 U.S. at 201. On the other hand, if a violation could be made out
on the allegations, the next sequential step is to ask whether
the right was clearly established. Id. This inquiry must be
undertaken in light of the specific context of the case, not as a
broad general proposition. Id. at 202. The relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.
Id. If "the officer's mistake as to what the law requires is
reasonable . . . the officer is entitled to the immunity
defense." Id. at 205.
A defendant must show that a reasonable officer could have
believed that the conduct was lawful in light of clearly
established law and the information the officer possessed.
Galvin v. Hay, 374 F.3d 739, 757 (9th Cir. 2004). Whether a
reasonable official could have believed the action taken was
lawful is a mixed question of law and fact: "It involves an objective test of whether a reasonable
official could have believed that his conduct was lawful in light
of what he knew and the action he took." Sinaloa Lake Owners
Ass'n v. City of Simi Valley, 70 F.3d 1095, 1099 (9th Cir.
If the essential facts are undisputed, or no reasonable juror
could find otherwise, the qualified immunity question is
appropriately one for the court. See Sinaloa Lake Owners Ass'n
v. City of Simi Valley, 70 F.3d 1095, 1100 (9th Cir. 1995)
(citing Hunter v. Bryant, 502 U.S. 224, 227-28 (1991)).
The qualified immunity inquiry is separate from the
constitutional inquiry for a claim of deliberate indifference
under the Eighth Amendment. Estate of Ford v. Caden,
301 F.3d 1043, 1053 (9th Cir. 2002) (extending Saucier to Eighth
Amendment claims). That summary judgment is denied as to whether
there was a constitutional violation does not necessarily
preclude a finding of qualified immunity. Id.
As to the first prong of the Saucier test, plaintiff has
adequately alleged that defendant's actions violated a
constitutional right, as discussed in the section above.
As to the second prong, whether a reasonable officer could have
believed his conduct was lawful in the circumstances, defendant
contends that his actions were reasonable because he was just
following orders. This is not a valid basis for qualified
immunity. See Carey v. Nevada Gaming Control Board,
279 F.3d 873, 881 (9th Cir. 2002) (defendants who act in reliance on a
state statute are generally presumed to act reasonably, even if
the statute is later found to be unconstitutional, but if the
statute is "patently violative of fundamental constitutional
principles," the officials may nevertheless be held liable). This
case involves a superior's order, rather than a state statute as
in Carey, so it was less reasonable to rely upon it, and most
importantly, as discussed in the section above, the order was
patently unconstitutional when applied to an inmate with a
serious medical need.
However, the test for this Saucier prong is objective the
question is whether it would be clear to a reasonable officer in the defendant's
circumstances that his or her conduct was unlawful, not whether
this particular defendant's proffered reasons hold water.
Saucier, 533 U.S. at 201. Plaintiff had received pain
medication at San Quentin and defendant believed that because
incoming prisoners at Corcoran are given immediate medical
examinations, plaintiff would receive treatment for his dental
needs as quickly there as at San Quentin. Given this, a
reasonable officer could have perceived that the risk of harm to
plaintiff was not too high. Defendant is entitled to qualified
immunity. See California Attorneys for Criminal Justice v.
Butts, 195 F.3d at 1049-50 (it is possible for a prison official
to know all of the facts alleged by plaintiff and to understand
that he cannot deliberately disregard a substantial risk of harm
to a prisoner, and yet to mistakenly, though reasonably, perceive
that the risk of harm is not too high; such an official is
entitled to qualified immunity).
Because plaintiff demands only damages, which are barred by
qualified immunity, the motion for summary judgment will be
Plaintiff's motion to compel (doc 35) is STRICKEN. For the
foregoing reasons, defendant's motion for summary judgment (doc
18) is GRANTED.
The clerk shall close the file.
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