James Bennett v. Jaspal Dhaliwal ( 2017 )

NOT FOR PUBLICATION FILED
DEC 5 2017
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES DAVIS BENNETT, No. 15-56448
Plaintiff-Appellant, D.C. No.
2:14-CV-04697-RGK-E
v.
JASPAL DHALIWAL, et al., MEMORANDUM*
Defendants-Appellees.
JAMES DAVIS BENNETT and PAMELA No. 16-55694
BENNETT,
D.C. No.
Plaintiffs-Appellants, 2:15-CV-01923-RGK-E
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
*
These two cases were consolidated for oral argument and are now
consolidated for decision. This disposition is not appropriate for publication and is
not precedent except as provided by Ninth Circuit Rule 36-3.
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Argued and Submitted November 16, 2017
Pasadena, California
Before: NGUYEN and HURWITZ, Circuit Judges, and SEEBORG,** District
Judge.
While incarcerated at federal correctional facilities, James Davis Bennett
contracted tuberculosis and Pott’s disease. He brought a Bivens suit against five
medical professionals at the Lompoc, California federal correctional institution.
After exhausting administrative remedies, Bennett and his wife later filed a Federal
Tort Claims Act (“FTCA”) suit against the United States.
In these appeals, the Bennetts challenge the district court’s denial of their
motion for voluntary dismissal of the FTCA action and its subsequent dismissal of
that action with prejudice for failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b). Bennett also appeals the district court’s summary judgment
against him in the Bivens action. In the FTCA action, we vacate and remand with
instructions to dismiss the action without prejudice, but we affirm the summary
judgment in the Bivens action.
1. The district court abused its discretion in rejecting the Bennetts’
voluntary motion to dismiss the FTCA action without prejudice and in
**
The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
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subsequently dismissing the action for failure to prosecute. See Al-Torki v.
Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996). The Bennetts repeatedly notified
both the district court and the United States before trial of their intention not to
proceed with the FTCA action, eventually seeking to dismiss that suit without
prejudice pursuant to Rule 41(a)(2). “A district court should grant a motion for
voluntary dismissal . . . unless a defendant can show that it will suffer some plain
legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001);
see also Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996)
(finding abuse of discretion in failure to grant Rule 41(a)(2) motion). The United
States would not have suffered any legal prejudice from a voluntary dismissal. See
Hyde & Drath v. Baker, 24 F.3d 1162, 1169 (9th Cir. 1994). Any loss of the
FTCA’s judgment bar defense does not constitute legal prejudice, as it represented
only the loss of a mere potential defense that had not yet accrued to the United
States.
2. We review the district court’s grant of summary judgment against
Bennett in his Eighth Amendment Bivens action de novo. Oswalt v. Resolute
Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011). In order to bring a successful
Eighth Amendment deliberate indifference claim, “mere malpractice, or even gross
negligence, does not suffice.” Wood v. Housewright, 900 F.2d 1332, 1334 (9th
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Cir. 1990). We conclude that no genuine issue of material fact exists as to whether
the medical professionals acted with deliberate indifference to Bennett’s serious
medical needs.
a. With respect to Dr. Richard Gross, midlevel practitioner Annabel Rivera,
and Nurse Marsha Pinnell, the record presents no issue of material fact as to their
knowledge of Bennett’s serious medical need, let alone deliberate indifference.
Gross never personally interacted with Bennett, but instead only supervised his
treatment by co-signing the medical notes made by the other medical professionals
and approving their recommended treatment, including pain medication, an MRI,
and a consultation with an outside orthopedist. No evidence in the record suggests
that Rivera had actual knowledge of Bennett’s serious medical need, nor that she
was deliberately indifferent to any such need, as she prescribed him the
medications that he requested. Nor is there any evidence that Pinnell knew of
Bennett’s serious medical need.
b. Vincente Tejada had perhaps the most contact with Bennett during the
period in question. Nonetheless, no evidence in the record supports that he had
actual knowledge of Bennett’s serious medical need. Nor was Tejada deliberately
indifferent to Bennett’s needs, as he prescribed various pain medications and anti-
inflammatory injections, ordered several lab tests and x-rays, ordered the first and
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emergency MRI, and placed Bennett on convalescent leave over the course of his
treatment. The record reflects that Tejada attempted to diagnose the source of
Bennett’s pain through various tests, and was responsive to Bennett’s requests for
medications and injections to relieve his pain in the meantime.
c. Although Dr. Jaspal Dhaliwal’s deposition suggests that he may have
known Bennett had a serious medical need, the record is nonetheless clear that he
did not act with deliberate indifference to that need. Over the course of Bennett’s
visits, Dhaliwal evaluated his symptoms and responded with an attendant course of
treatment. Dhaliwal adjusted his treatment according to Bennett’s feedback,
prescribing him new medications for pain, constipation, and hypothyroidism, or
modifying the dosages on those medications. Dhaliwal ordered several x-ray and
lab tests in an effort properly to diagnose the source of Bennett’s pain. Dhaliwal’s
failure to order a more timely MRI may arguably constitute negligence, but given
the amount of medical care he provided to Bennett, as well as his responsiveness to
his pain, no reasonable jury could conclude that he was deliberately indifferent to
Bennett’s needs.
3. We therefore VACATE the district court’s order granting dismissal with
prejudice in the FTCA action for failure to prosecute and REMAND with
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instructions to dismiss without prejudice. We AFFIRM the district court’s order
entering summary judgment against Bennett in his Bivens action.
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