Jesse Yarborough v. J. Norwood ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSE YARBOROUGH, No. 14-55785
Plaintiff-Appellant, D.C. No.
5:10-cv-00346-VAP-PLA
v.
J. L. NORWOOD; et al., MEMORANDUM*
Defendants-Appellees,
and
FRANCISCO J. QUINTANA, Official
Capacity; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted May 2, 2018**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit
Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Former prisoner Jesse Yarborough appeals pro se the adverse grant of
summary judgment on his claims of sexual harassment and inadequate medical
treatment while in federal custody, pursuant to Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971). We have jurisdiction under
28 U.S.C. § 1291 and review the grant of summary judgment de novo. Toguchi v.
Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm in part, reverse in part, and
remand.
It was error to grant summary judgment against Yarborough on his claims that
Dr. Jesus Fernandez and Jimmy Elevaso1 were deliberately indifferent to his medical
needs by denying his requests for unused catheters. Although Yarborough rejected
recommendations for alternative treatments, Dr. Fernandez and Elevaso were still
obligated to provide some form of reasonable treatment. See, e.g., Ortiz v. City of
Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (holding a plaintiff alleging deliberate
medical indifference “need not prove complete failure to treat”).2 Additionally,
while Dr. Fernandez recalled that, “[o]n many occasions,” Yarborough did “not
1
We note that portions of the record spell Jimmy Elevaso as “Jimmy
Elevazo.”
2
See also De’Lonta v. Johnson, 708 F.3d 520, 525–26 (4th Cir. 2013)
(rejecting an argument that provision of some treatment for a serious medical need
“necessarily” rendered the plaintiff’s claim of deliberate indifference legally
insufficient and stating that “just because [officials] have provided [the plaintiff]
with some treatment . . . it does not follow that they have necessarily provided her
with constitutionally adequate treatment”).
2
return the full amount of catheters which were previously provided to him,” this
vague recollection was disputed by Yarborough in his deposition, and is too
ambiguous to prove the absence of a genuine dispute of material fact. Importantly,
this case is not about whether the one-for-one catheter swap was reasonable or
necessary; rather, this case is about whether Yarborough was denied sufficient
unused catheters to prevent repeated infections. Summary judgment does not permit
disregard of Yarborough’s factual account as a “bald assertion” while crediting Dr.
Fernandez’s similarly-conclusory account as true. See McLaughlin v. Liu, 849 F.2d
1205, 1207–08 (9th Cir. 1988).
It was also error to grant summary judgment against Yarborough on his claim
that Dr. Fernandez made sexual comments while performing multiple rectal
examinations. First, the court’s reliance on the absence of medical records
corroborating the exact date of an examination was misguided given Dr. Fernandez
agreed that at least one examination occurred. Second, the court’s conclusion that
Dr. Fernandez’s comments were not sufficiently offensive to human dignity to
constitute sexual harassment is a factual determination, and a reasonable jury could
find that Dr. Fernandez’s comments within the context of a rectal examination
served no penological justification. See Wood v. Beauclair, 692 F.3d 1041, 1048
(9th Cir. 2012).
3
However, there was no abuse of discretion in denying Yarborough’s request
for a continuance to conduct additional discovery because Yarborough failed to
identify any efforts to conduct discovery during the eight months before the
discovery deadline or how allowing additional discovery would have precluded
summary judgment. See Tatum v. City & Cty. of S.F., 441 F.3d 1090, 1100 (9th Cir.
2006).3
The district court is instructed to consider whether appointment of counsel on
remand is appropriate.
AFFIRMED in part, REVERSED in part, and REMANDED.
3
Yarborough’s request to amend the record, Doc. 28, is denied. See
Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982) (“The bar of
sovereign immunity cannot be avoided merely by naming officers and employees of
the United States as defendants.”). Additionally, Dr. Fernandez and Elevaso’s
motion to strike, Doc. 36, is denied as unnecessary because “[d]ocuments or facts
not presented to the district court are not part of the record on appeal.” United States
v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
4