Manuel Lozano v. Patricia Knudson ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL LOZANO, No. 15-56528
Plaintiff-Appellant, D.C. No. 5:13-cv-143-JVS-AGR
v.
MEMORANDUM *
PATRICIA KNUDSON, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California,
James V. Selna, District Judge, Presiding
Argued and Submitted April 5, 2017
Pasadena, California
Before: CLIFTON and OWENS, Circuit Judges, and ANTOON,** District Judge.
California state prisoner Manuel Lozano appeals from the district court’s
order granting summary judgment in favor of Defendant jail officials and doctors
on his 42 U.S.C. § 1983 claim that Defendants were deliberately indifferent to his
serious medical needs in violation of his constitutional rights. We review the order
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
granting the motion for summary judgment de novo. Lemire v. Cal. Dep’t of Corr.
& Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). We have jurisdiction pursuant to
28 U.S.C. § 1291. We vacate and remand.
In the circumstances of this case, the district court erred in granting
summary judgment in favor of Defendants without considering Lozano’s causation
evidence. Throughout the litigation, Lozano, who was proceeding pro se, made
clear to the district court that a declaration from his treating ophthalmologist was
necessary to establish that Defendants’ deliberate indifference caused his vision
loss. Lozano asked the district court multiple times how to obtain a declaration,
but the court never provided an answer. He nonetheless filed his medical records
with the district court, including the notes of his treating ophthalmologist, which
the district court acknowledged and “lodged.”
In the report and recommendation on the motion for summary judgment, the
magistrate judge did not consider the medical evidence filed with the court because
Lozano did not cite it in his memorandum. The magistrate judge informed Lozano
that in order to raise an issue of material fact as to causation, he needed to file and
cite to evidence such as his medical records. But because Lozano had already filed
all of his medical records with the court, he could have reasonably believed that
those records were insufficient and that it would have been fruitless to file them
again in conjunction with his opposition to the motion for summary judgment.
2
Lozano’s medical records, if considered, may well have enabled Lozano to
establish a genuine issue of material fact as to causation. The medical records
showed a six-month delay in Lozano’s glaucoma treatment and that he was first
diagnosed with partial blindness immediately after that delay. Lozano’s treating
ophthalmologist remarked in Lozano’s medical records that he was partially blind
and that her plan for Lozano’s glaucoma treatment was “not followed[] [a]t all.”
See Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1168 (9th
Cir. 2013) (“[P]laintiffs bear the burden of demonstrating that the defendant’s
conduct caused some harm suffered by the plaintiffs. . . . [But a plaintiff] doesn’t
have to offer evidence which positively excludes every other possible cause of the
[injury].” (emphasis added) (internal quotation marks and citation omitted)); see
also Stevenson v. Koskey, 877 F.2d 1435, 1438 (9th Cir. 1989) (applying tort
causation factors in the civil rights context).
Due to the case’s complexity and Lozano’s confusion on the procedural
requirements, we vacate and remand with the instruction that the district court
allow Lozano to cure technical deficiencies in his filings. Walters v. Young, 100
F.3d 1437, 1441 (9th Cir. 1996) (“[T]his court has long sought to ensure that pro se
litigants do not unwittingly fall victim to procedural requirements that they may,
with some assistance from the court, be able to satisfy.”). We strongly urge the
district court to appoint pro bono counsel to represent Lozano going forward if
3
such counsel is available. If current pro bono counsel is able and willing to accept
the assignment (which, we realize, may not be practical), they should advise the
district court following issuance of the mandate by this court.
VACATED and REMANDED.
Costs are to be taxed against the defendants-appellees.
4