Pierre Hoffman v. Charles Lee , 474 F. App'x 503 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 02 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PIERRE L. HOFFMAN, No. 10-15657
Plaintiff - Appellant, D.C. No. 5:06-cv-02248-JW
v.
MEMORANDUM*
CHARLES LEE, Dr.,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
James Ware, Chief District Judge, Presiding
Argued and Submitted March 13, 2012
San Francisco, California
Before: McKEOWN and M. SMITH, Circuit Judges, and ROTHSTEIN, Senior
District Judge.**
Pierre Hoffman, a prisoner at times relevant to this lawsuit, brought suit
against Dr. Charles Lee, the prison health care manager, claiming deliberate
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
U.S. District Court for Western Washington, sitting by designation.
indifference to serious medical needs and retaliation against protected speech and
alleging violations of the First and Eighth Amendments under 42 U.S.C. § 1983.
The jury returned a verdict in favor of Dr. Lee and the district court entered
judgment. It is from that judgment that Hoffman appeals. We have jurisdiction
over this matter pursuant to 28 U.S.C. § 1291. The facts of this case are known to
the parties. We need not repeat them here.
Hoffman argues that it was error for the district court to instruct the jury on
his Eighth Amendment claim to give deference to the judgment of prison officials
on matters pertaining to discipline and security. “The standard of review on appeal
for an alleged error in jury instructions depends on the nature of the claimed error.
We review a district court’s formulation of jury instructions in a civil case for
abuse of discretion. We review de novo whether the instructions misstated the
law.” Dang v. Cross, 422 F.3d 800, 804 (9th Cir. 2005) (citations and internal
quotation marks omitted).
We recently held in Norwood v. Vance, 591 F.3d 1062, 1066–67 (9th Cir.
2010), that such an instruction is necessary in cases challenging a prisoner’s
conditions of confinement. Because a prisoner’s medical care is essentially a
condition of his confinement, see Wilson v. Seiter, 501 U.S. 294, 303 (1991), the
court was correct to give the deference instruction here.
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The district court did err in refusing to give a supervisory liability instruction
on Hoffman’s First Amendment claim. The court conceded that there was
testimony indicating that Dr. Lee had ordered his subordinates to raid Hoffman’s
cell for medical supplies, but maintained that such evidence was not characteristic
of supervisory liability. On the contrary, a supervisor is liable for the acts of his
subordinates when he directs the violation. Corales v. Bennett, 567 F.3d 554, 570
(9th Cir. 2009).
This error does not require reversal, however, because it was more probably
than not harmless. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009).
“[P]rejudicial error results when, looking to the instructions as a whole, the
substance of the applicable law was not fairly and correctly covered.” Swinton v.
Potomac Corp., 270 F.3d 794, 807 (9th Cir. 2001) (internal quotation and other
marks omitted). The court correctly instructed the jury as to the First and Eighth
Amendment claims and, in the context of the Eighth Amendment, provided an
alternative instruction for supervisory liability. Hoffman argues that the court
committed reversible error by failing to repeat the supervisory liability instruction
in its explanation of the First Amendment claim. But this oversight is a far cry
from the errors we have held to be prejudicial in other cases. See, e.g., Sanders v.
City of Newport, 657 F.3d 772, 782 (9th Cir. 2011) (failure to define “reasonable
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cause” not harmless); Clem, 566 F.3d at 1183 (failure to explain “deliberately
indifferent” not harmless); Caballero v. City of Concord, 956 F.2d 204, 207 (9th
Cir. 1992) (addition of extra element to plaintiff’s burden of proof not harmless).
Most importantly, the question of supervisory liability on the First
Amendment claim accidentally remained on the verdict form, despite the judge’s
ruling, and the jury returned a verdict in favor of Dr. Lee. We have held that
verdict “forms are, in essence, instructions to the jury and thus in some cases can
cure problems created by defective instructions.” Pulido v. Chrones, 629 F.3d
1007, 1016 (9th Cir. 2010) (citations and internal quotation marks omitted).
Because the court had already instructed the jury as to all the correct elements of
both a First Amendment claim and supervisory liability, albeit in piecemeal
fashion, prejudice could only result from the jury’s confusion at not hearing the
alternative instruction repeated in the specific context of a First Amendment claim.
The verdict form’s inadvertent question linked supervisory liability to the
retaliation claim and thus dispelled any confusion.
The district court properly admitted evidence of the medical care Hoffman
received unrelated to his urinary problems. The fact that a prisoner’s harm was an
isolated occurrence during his overall treatment weighs against a finding of
deliberate indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
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Hoffman concedes that he suffers from numerous medical conditions and does not
dispute that he received adequate care for those other issues. The court was correct
to allow the jury to see the whole picture and decide if the alleged harms were
isolated instances of neglect.
The court also was correct to admit Dr. Milanesa’s testimony. Dr. Milanesa
was not disclosed as an expert witness, but as a lay witness he could testify to
matters rationally based on his perception. See FED. R. EVID. 701. Hoffman is
correct that other circuits have held that treating physicians are experts that must be
properly disclosed under Federal Rule of Civil Procedure 26. See, e.g., Musser v.
Gentiva Health Servs., 356 F.3d 751, 756 n.2 (7th Cir. 2004). This court has not.
We hold that Dr. Milanesa testified only as a percipient witness and thus need not
have been disclosed as an expert. Each of his opinions addressed his thoughts on
particular actions that he took in his treatment of Hoffman. The district court
properly admitted the testimony.
AFFIRMED.
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