Lewis Stewart v. Romeo Aranas ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEWIS STEWART, No. 20-15586
Plaintiff-Appellee,
D.C. No.
v. 3:17-cv-00132-
MMD-CLB
ROMEO ARANAS; JAMES COX;
FRANCISCO M. SANCHEZ; BRIAN E.
WILLIAMS, OPINION
Defendants-Appellants,
and
CHERYL BURSON; S.L. CLARK;
JAMES E. DZURENDA; ANGIE JONES;
SEAN SU; STATE OF NEVADA,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted August 10, 2021
San Francisco, California
Filed May 4, 2022
2 STEWART V. ARANAS
Before: Eugene E. Siler, * Morgan Christen, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Siler;
Concurrence by Judge Christen
SUMMARY **
Prisoner Civil Rights
The panel affirmed the district court’s order denying
qualified immunity to prison officials in an action brought
pursuant to 42 U.S.C. § 1983 alleging that defendants were
deliberately indifferent to plaintiff’s medical needs when,
despite his numerous complaints over a period of years and
a visibly deteriorating condition, they ignored his enlarged
prostate.
The panel determined that only examination of the
second prong of the qualified immunity analysis was
necessary—whether the right was clearly established at the
time of the violation—because doing so would not hamper
the development of precedent and both parties expressly
acknowledged that this case turned on the second prong.
The panel stated it was clearly established at the time of
plaintiff’s treatment that prison officials violate the
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
STEWART V. ARANAS 3
constitution when they choose a medically unacceptable
course of treatment for the circumstances and a reasonable
jury could find that the prison officials here did just that. At
some point “wait and see” becomes deny and delay.
Plaintiff’s condition sharply deteriorated during his last few
years at Southern Desert Correctional Center. Yet prison
officials never deviated from their “wait and see” treatment
plan. As a result, plaintiff alleged he developed stage 3
kidney disease, erectile dysfunction due to the prostate tissue
cavity, urine build up, and some pain from a prostatectomy.
Plaintiff alleged more than mere disagreement with a
medical treatment plan and there was evidence that he
suffered from intractable pain over an approximately three-
year period that was interfering with his daily activities.
Concurring in the judgment, Judge Christen wrote
separately for two reasons: First, the record did not support
the majority’s factual predicate. The majority relied on the
magistrate judge’s recommendation to compile a factual
history, but Judge Christen could not find support in the
record for the recommendation’s recitation of the
background facts. Second, Judge Christen clarified that she
concurred in the result reached by the majority only because
defendants did not appeal the first prong of the qualified
immunity analysis and left unchallenged the magistrate
judge’s recommendation that a genuine issue existed
regarding whether defendants acted with deliberate
indifference. Judge Christen agreed with the majority that a
reasonable official with subjective awareness of a factual
predicate akin to the one reflected in the magistrate judge’s
report and recommendation would have violated plaintiff’s
constitutional rights by continuing a treatment plan of
“watchful waiting” after plaintiff’s condition became acute.
4 STEWART V. ARANAS
COUNSEL
Frank A. Toddre II (argued), Senior Deputy Attorney
General; D. Randall Gilmer, Chief Deputy Attorney
General; Aaron D. Ford, Attorney General; Office of the
Attorney General, Las Vegas, Nevada; for Defendants-
Appellants.
Andrew M. Lagomarsino (argued), Lagomarsino Law,
Henderson, Nevada, for Plaintiff-Appellee.
OPINION
SILER, Circuit Judge:
Mere disagreement with a medical treatment plan is not
deliberate indifference. But continuation of the same
treatment in the face of obvious failure is. Lewis Stewart
alleges just that: prison officials, despite numerous
complaints over a period of years and a visibly deteriorating
condition, ignored his enlarged prostate. As a result, he
claims that he has suffered irreversible injuries. Because it
was clearly established at the time of Stewart’s treatment
that prison officials violate the constitution when they
choose a medically unacceptable course of treatment for the
circumstances and a reasonable jury could find that the
prison officials here did just that, we affirm the district court.
I
While housed at the Southern Desert Correctional Center
(SDCC), Stewart began to feel “discomfort in his lower
abdominal and back area.” And so came the first of
numerous written requests to the prison staff for care. After
a long delay, Stewart was seen by Romeo Aranas and
STEWART V. ARANAS 5
Francisco Sanchez (among others). He complained to them
“that he was having difficulties urinating, that he had to sit
on the toilet to urinate, and that his short and irregular urine
flows were very painful.” Indeed, his pain was “so severe
that he had to curl into a fetal position to help alleviate the
pain.” In response, Aranas and Sanchez took Stewart’s
vitals and prodded both his abdomen and his kidney area.
Stewart was then given some generic medication and sent on
his way.
But neither the pain nor the inability to urinate stopped.
And by sometime between 2013 and 2015, Stewart’s urethra,
testicles, and abdominal areas grew inflamed. More
complaints to Aranas and Sanchez followed but nothing
changed.
Subsequently in 2015, Stewart was transferred to Warm
Springs Correctional Center (WSCC). The ride to his new
facility lasted eight uncomfortable hours and he “arrived
pale, flushed, sweating and unbalanced.” Upon first look,
the WSCC medical staff initiated “immediate emergency
care.”
Dr. Marsha Johns examined Stewart’s abdominal cavity
and ordered an immediate catheterization “to drain Stewart’s
urinary retention.” That process drained more than six liters
or fourteen pounds of fluid from his bladder and urinary
system. Stewart was next sent to the Regional Medical
Facility at the Northern Nevada Correctional Facility
(NNCF). There, he was seen by three urologists, including
two outside specialists, and underwent surgery for a
transurethral resection of the prostate. Despite his treatment
at SDCC and NNCF, Stewart now has several long-term
issues, including stage 3 kidney disease, erectile dysfunction
due to the prostate tissue cavity, urine build up, and some
pain from the prostatectomy.
6 STEWART V. ARANAS
Afterwards, Stewart filed grievances with SDCC related
to his care. Those grievances were denied. Stewart then
brought multiple claims under Section 1983 against
numerous prison officials. After the district court screened
Stewart’s complaint, he was left with two claims of
deliberate indifference to serious medical needs. The
remaining officials claimed that they were entitled to
qualified immunity and moved for summary judgment. The
district court disagreed.
II
We have jurisdiction under 28 U.S.C. § 1291 and review
whether the prison officials are entitled to qualified
immunity de novo. Hines v. Youseff, 914 F.3d 1218, 1227
(9th Cir. 2019).
III
Stewart alleges that the prison officials acted with
“deliberate indifference” to his “serious medical needs.”
Those same officials respond that they are entitled to
qualified immunity. So, to prevail, Stewart must show that:
(1) the officials violated a constitutional right, and (2) the
right was clearly established at the time of the violation.
Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016).
Stewart can succeed under Hamby.
Constitutional right. Although Hamby puts forward a
two-prong test that first asks whether officials violated a
constitutional right, we need not analyze both prongs. Both
parties expressly acknowledge that this case turns on the
second prong of Hamby, not the first, so only examination of
the second is necessary. It is recognized that a qualified
immunity analysis may be confined to only the second prong
of Hamby when doing so will not hamper the development
STEWART V. ARANAS 7
of precedent. Horton by Horton v. City of Santa Maria,
915 F.3d 592, 602 (9th Cir. 2019). Such is the case here.
Clearly established. “To be clearly established, a right
must be sufficiently clear that every reasonable official
would have understood that what he is doing violates that
right.” Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015) (per
curiam). A case directly on point is unnecessary but the
constitutional question must be “beyond debate.” Ashcroft
v. Al-Kidd, 563 U.S. 731 (2011).
Here, the prison officials claim that no clearly
established law barred their “wait and see” treatment plan
for Stewart’s enlarged prostate. It is true that we have not
found a case on all fours with the factual context presented
here. But it has been established that “deny[ing], delay[ing],
or intentionally interfer[ing] with medical treatment” can
violate the constitution. Colwell v. Bannister, 763 F.3d
1060, 1066 (9th Cir. 2014). At some point “wait and see”
becomes deny and delay. Stewart’s condition sharply
deteriorated during his last few years at SDCC. Yet prison
officials never deviated from their “wait and see” treatment
plan. As a result, Stewart alleges he developed stage 3
kidney disease, erectile dysfunction due to the prostate tissue
cavity, urine build up, and some pain from the
prostatectomy. A delay in treatment can violate the
constitution if it results in injury. See Shapley v. Nev. Bd. of
State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)
(requiring that any treatment delays cause harm).
Besides, the prison officials knew that they violate the
constitution when they persist in a treatment known to be
ineffective. See Snow v. McDaniel, 681 F.3d 978, 988 (9th
Cir. 2012). Most objective evidence pointed toward the long-
term failure of the “wait and see” treatment plan. See
8 STEWART V. ARANAS
Sandoval v. Cnty. Of San Diego, 985 F.3d 657, 680 (9th Cir.
2021).
Hamby does not dictate a different result. See 821 F.3d
at 1094. To the contrary, Hamby simply reiterates two rules
for medical deliberate indifference claims: (1) we must
consider the most similar cases, and (2) mere disagreement
with a treatment plan does not constitute deliberate
indifference. Id. And Stewart alleges more than mere
disagreement. Unlike Hamby, there was not an agreement
by all the doctors (including Hamby’s expert) that watchful
waiting was reasonable. See Hamby, 821 F.3d at 1093–94.
And, unlike Hamby, there is evidence that Stewart was
suffering from intractable pain over an approximately three-
year period that was interfering with his daily activities. Id.
Therefore, we conclude that the prison officials are not
entitled to qualified immunity.
AFFIRMED.
CHRISTEN, Circuit Judge, concurring in the judgment:
I concur with my colleagues’ decision to affirm the
district court’s denial of qualified immunity, but write
separately for two reasons: (1) by my read, the record does
not support the majority’s factual predicate; and (2) to clarify
that I concur in the result reached by the majority only
because defendants did not appeal the first prong of the
qualified immunity analysis.
Lewis Stewart was treated for an enlarged prostate for
several years while he was in the custody of the Nevada
Department of Corrections (“NDOC”). His complaint’s
allegations are short on details, but it is clear that it was
STEWART V. ARANAS 9
between 2013 and 2015 that his symptoms began to worsen.
During this period, records confirm that NDOC staff
examined Stewart several times and tried various treatments.
The records also show that NDOC discontinued some
treatment at Stewart’s request.
Stewart was transferred from Southern Desert
Correctional Center (“SDCC”) to Warm Springs
Correctional Center (“WSCC”) in August of 2015 via an
eight-hour bus ride. His complaint asserts that, upon his
arrival at WSCC, he immediately complained of acute pain,
told the personnel at WSCC that he could not urinate, and
that more than six liters of fluid were drained from his
system. 1 Stewart’s complaint also alleges that upon his
arrival, a provider at WSCC exclaimed, “How long has he
been like this?” But neither Stewart’s complaint nor his
opposition to defendants’ summary judgment motion ever
answered the provider’s question. Instead, we are left to
guess how long Stewart’s condition was acute and he offers
only the conclusory assertion that the defendants were
subjectively aware of, and deliberately indifferent to, his
serious medical condition. A separate problem is presented
by the fact that nothing in the record differentiates between
the various defendants’ actions. This omission is
particularly significant because some of the defendants were
not care providers.
Stewart’s complaint alleges that he complained about
urination problems and associated pain for years while
1
Stewart does not identify the date of his transfer, nor do the records
match his allegation that he was catheterized immediately upon arrival
at WSCC, but the records are unclear and we view contested facts in the
light most favorable to Stewart in this interlocutory appeal. See Plumhoff
v. Rickard, 572 U.S. 765, 768 (2014) (“[W]e view the facts in the light
most favorable to the nonmoving party.”).
10 STEWART V. ARANAS
incarcerated at SDCC, and that he did not receive adequate
treatment. But the medical records do not support a claim of
deliberate indifference. Instead, the records show that
between February 20, 2013 and October 15, 2014, Stewart
was taking Flomax, he thought his symptoms were improved
with the drug, and he wanted to continue taking it. In
December of 2014, a medical note shows Stewart was “still
on Lasix,” a diuretic, that he was urinating more frequently,
and that he wanted to discontinue taking this medication. In
May, Stewart failed to appear for a scheduled medical
appointment. He attended two appointments in July, but the
notes from these visits are indecipherable. Stewart remained
at SDCC for the first eight months of 2015 and then
transferred to WSCC. At some point during that eight-
month period, his prostate condition became much more
serious.
Stewart’s complaint alleges that defendants Aranas,
Clark, Jones, Sanchez, and Su saw him during the operative
time frame but did not provide treatment. The claims against
Clark, Jones and Su were dismissed for failure of service.
The complaint also alleges that Stewart complained about
his medical condition to defendants Burson, Cox, and
Williams and that they did not do anything, but the claims
against Burson were also dismissed due to failure of
service. 2 James Cox, the Director of the Nevada Department
of Corrections, and Brian Williams, the Warden at the
Southern Desert Correctional Center, remain as defendants.
Stewart’s complaint does not explain whether he
2
The district court dismissed plaintiff’s claims against Burson,
Jones, Su, and Clark because plaintiff did not provide proof of service.
Only Aranas, Sanchez, Cox, and Williams remain as defendants.
STEWART V. ARANAS 11
communicated with these defendants in 2015, or what he
told them about his medical condition.
The majority relies on the R&R to compile a factual
history, but I cannot find support in the record for the R&R’s
recitation of the background facts. Citing the R&R, my
colleagues describe Stewart’s “numerous written requests to
the prison staff for care” and a “long delay” before Stewart
received attention when his symptoms first began in 2002.
The R&R also asserts that “Stewart continued to complain
to . . . defendants about the severity of his pains and the
inability to urinate regularly without discomfort” in the
following months, and that “[b]etween 2014 and 2015,
Stewart complained to defendants through kites and visits
about his urination problems and slow, short flows.” Despite
the description in the R&R, the scant records before us do
not show that Stewart put defendants on notice that his
condition had worsened, and the other allegations in
Stewart’s complaint do not meet the standard established by
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Even so, defendants did not object to the magistrate
judge’s recommendation that a genuine issue exists
regarding whether defendants acted with deliberate
indifference. Defendants only objected to the magistrate
judge’s recommendation that existing precedent put
defendants on notice that their treatment of Stewart may
have been unconstitutional, and they only appealed the
“clearly established” prong of the qualified immunity
analysis. “We review only issues which are argued
specifically and distinctly in a party’s opening brief.”
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). I agree
with the majority that a reasonable official with subjective
awareness of a factual predicate akin to the one reflected in
the R&R would have violated Stewart’s constitutional rights
12 STEWART V. ARANAS
by continuing a treatment plan of “watchful waiting” after
Stewart’s condition became acute. And because defendants
left unchallenged the suggestion that Stewart adequately
alleged the defendants acted with deliberate indifference, I
join the majority in affirming the district court’s denial of
qualified immunity.