David Pride, Jr. v. M. Correa , 533 F. App'x 745 ( 2013 )

FILED
UNITED STATES COURT OF APPEALS JUL 16 2013
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
DAVID CODELL PRIDE, Jr., No. 10-56036
Plaintiff - Appellant, D.C. No. 3:07-cv-01382-BEN-
JMA
v. Southern District of California,
San Diego
M. CORREA; LEVIN, Dr.; T. OCHOA,
Warden; SANTIAGO, Dr.,
ORDER
Defendants - Appellees.
Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.
Pride’s request for publication is GRANTED. The memorandum disposition
filed on December 27, 2012, is withdrawn. A published opinion along with a new
memorandum disposition will be filed concurrently with this order.
IT IS SO ORDERED.
FILED
NOT FOR PUBLICATION JUL 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID CODELL PRIDE, Jr., No. 10-56036
Plaintiff - Appellant, D.C. No. 3:07-cv-01382-BEN-
JMA
v.
M. CORREA; LEVIN, Dr.; T. OCHOA, MEMORANDUM*
Warden; SANTIAGO, Dr.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted December 6, 2012
Pasadena, California
Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.
Plaintiff David Pride, a California prisoner, appeals from the district court’s:
(1) grant of defendants’ motion for summary judgment; and (2) denial of Pride’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motion for a continuance to conduct discovery.1 We have jurisdiction pursuant to
28 U.S.C. § 1291.
We hold that the district court erred by granting summary judgment in favor
of defendants Dr. Levin and Nurse Correa. We affirm the district court’s grant of
summary judgment in favor of defendants Dr. Santiago and Warden Ochoa. We
find that the district court erred by denying Pride’s motion to continue the hearing
on defendants’ motion for summary judgment pending further discovery. We
remand for further proceedings consistent with this disposition.
I. Defendants’ Motion for Summary Judgment
A. Dr. Levin and Nurse Correa
We review a grant of summary judgment de novo. Citicorp Real Estate, Inc.
v. Smith, 155 F.3d 1097, 1103 (9th Cir. 1998). In light of Pride’s medical records
showing chronic and substantial pain resulting from a permanent shoulder injury
caused by a gunshot wound, and from a knee injury, Pride has established a
genuine issue of material fact on whether he has a serious medical need. Clement
v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002). Genuine issues of material fact also
1
We address the district court’s grant of defendants’ motion to dismiss
Pride’s claim for injunctive relief in a concurrently-filed opinion.
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exist on whether Dr. Levin and Nurse Correa were deliberately indifferent to
Pride’s medical needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
There is no evidence in the record showing that the Chrono Committee’s
denial of Dr. Santiago’s requests for Pride was based on medical reasons. The
record also does not identify the names of the Chrono Committee doctors, who
purportedly denied Dr. Santiago’s requests. Viewing the evidence in a light most
favorable to Pride raises a reasonable inference that the Chrono Committee’s
decision constituted an inferior medical opinion when compared to Dr. Santiago’s
recommendation as Pride’s treating physician. See e.g., Snow v. McDaniel, 681
F.3d 978 (9th Cir. 2012) (concluding that a triable issue existed as to deliberate
indifference where a panel of doctors repeatedly denied the recommendation made
by plaintiff’s treating doctor and two orthopedic surgeons that plaintiff undergo
surgery); Hamilton v. Endell, 981 F.2d 1062 (9th Cir. 1992) (holding that
defendants may have acted with deliberate indifference by choosing to rely on a
doctor’s “inferior” medical opinion, which was based solely on standard medical
protocol, instead of on plaintiff’s treating physician and surgeon).
Moreover, it is undisputed that Nurse Correa was unqualified to be on the
Chrono Committee. But Dr. Levin sent Nurse Correa to the Chrono Committee as
his representative and Nurse Correa signed the denial on Dr. Levin’s behalf. See
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Toussaint v. McCarthy, 801 F.2d 1080, 1111-12 (9th Cir. 1986) (reversing
summary judgment in favor of defendants because if registered nurses provided “a
number of [medical] services which they [were] not qualified to perform,” this
would demonstrate deliberate indifference), abrogated in part on other grounds by
Sandin v. Conner, 515 U.S. 472 (1995)).
Accordingly, triable issues of material fact exist as to whether: (1) the
Chrono Committee’s decision was an inferior medical opinion when compared to
Dr. Santiago’s opinion; (2) Dr. Levin and Nurse Correa acted with deliberate
indifference in denying Pride’s Second Level Review given the lack of medical
reasons for the Chrono Committee’s decision; and (3) Dr. Levin and Nurse Correa
acted with deliberate indifference when Nurse Correa attended the Chrono
Committee for Dr. Levin.2
B. Dr. Santiago
The district court properly granted summary judgment in favor of Dr.
Santiago. At most, Dr. Santiago’s conduct amounts to negligence, not deliberate
indifference. Wood v. Housewright, 900 F.2d 1332, 1334-35 (9th Cir. 1990) (gross
2
Defendants’ argument that Pride never followed up with his treating
physician is unpersuasive. Pride claims that he saw his doctor and spoke about his
appeal. He also visited with additional doctors who issued the same chronos as Dr.
Santiago. Thus, whether Pride followed through with instruction to see his treating
physicians is also a triable issue of material fact.
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negligence and mere medical malpractice do not constitute deliberate indifference).
C. Warden Ochoa
The district court also properly granted summary judgment in favor of
Warden Ochoa. Ochoa was neither personally involved with the alleged
constitutional violation nor was his policy sufficiently causally connected to the
violation. See Redman v. County of San Diego, 942 F.2d 1435, 1454-55 (9th Cir.
1991) (holding that for a supervisor to be individually liable he must be personally
involved in the constitutional deprivation, or his policy must be sufficiently
causally connected to the constitutional violation).
II. Pride’s Motion for Continuance to Conduct Discovery
We review for abuse of discretion the district court’s denial of a motion to
continue a summary judgment hearing pending further discovery. Michelman v.
Lincoln Nat. Life Ins. Co., 685 F.3d 887, 892 (9th Cir. 2012). The district court
abused its discretion by requiring the discovery sought by Pride under Rule 56(d)
to be obtained from defendants, rather than from a third-party. See Koon v. United
States, 518 U.S. 81, 100 (1996) (“A district court by definition abuses its discretion
when it makes an error of law.”).
Moreover, Pride demonstrated that the additional discovery would have
precluded summary judgment, thus, the district court’s denial of Pride’s motion
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was an abuse of discretion. See VISA Int’l Serv. Ass’n v. Bankcard Holders of Am.,
784 F.2d 1472, 1475 (9th Cir. 1986) (stating that denial is disfavored when a
plaintiff specifically identifies relevant information and points to “some basis” for
its existence). Specifically, Pride’s requested information from Nurse Garcia
regarding his appointments with doctors would have disproved defendants’ claim
that Pride did not go back to his doctors as instructed. Pride’s requested
information regarding attempts by defendants to fabricate documentation during
Pride’s appeal would have demonstrated personal animosity, which bears on the
issue of deliberate indifference. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th
Cir. 1996) (holding that “personal animosity” may establish deliberate
indifference). In his motion, Pride substantiated that Garcia would possess the
requested discovery because she interviewed Pride on issues raised in his inmate
appeal, was involved in the grievance process, and filled out one of the appeal
forms.
Thus, on remand, Pride must be allowed additional discovery.3
3
Pride did not seek discovery relating to Dr. Santiago. Although Pride
sought information from Garcia on Ochoa’s prison mattress policy, that discovery
would not have precluded summary judgment. Thus, summary judgment in favor
of Dr. Santiago and Warden Ochoa is not subject to reversal because of the district
court’s erroneous ruling on Pride’s motion for a continuance.
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III. Conclusion
The district court’s order granting summary judgment in favor of defendants
is REVERSED in part and AFFIRMED in part. The district court’s order denying
Pride’s motion for discovery is REVERSED; on remand, Pride must be allowed
additional discovery. Pride shall recover his costs on appeal.
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