Gerald Righetti v. Neil Richman ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 20 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD RIGHETTI, No. 14-16330
Plaintiff-Appellant, D.C. No. 3:11-cv-02717-EMC
v.
MEMORANDUM*
NEIL RICHMAN, Dr.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted May 12, 2016
San Francisco, California
Before: McKEOWN, SACK**, and FRIEDLAND, Circuit Judges.
Former California state prisoner Gerald Righetti appeals the grant of
summary judgment in his 42 U.S.C. § 1983 action alleging medical deliberate
indifference to his serious medical needs under the Eighth Amendment. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
review summary judgment de novo, Colwell v. Bannister, 763 F.3d 1060, 1065
(9th Cir. 2014), and we reverse.
Righetti, a non-ambulatory triplegic who is paralyzed in one arm and both
legs, contends that Defendant Dr. Richman, an orthopedic surgeon, provided
constitutionally inadequate medical care following Righetti’s arrival at Natividad
Medical Center for treatment of an intertrochanteric hip fracture. Dr. Richman
acknowledges that he did not personally conduct a patient assessment, but relied
solely on information provided telephonically by an emergency room physician to
assess Righetti’s condition and situation. Dr. Richman rejected Mr. Righetti as a
candidate for immediate surgery based on the information that was conveyed.
The record indicates that Dr. Richman recommended a follow-up examination in
one week’s time, although this examination did not occur.
Viewing the evidence in the light most favorable to Righetti, Dr. Richman
ruled Righetti out as a candidate for surgery for at least a week and possibly
entirely, and did so on the basis that Righetti was a non-ambulatory triplegic
without making an individual patient assessment based on a personal bedside
evaluation. Righetti presented expert medical testimony that Dr. Richman’s care
(or failure to provide care) was medically unacceptable. This evidence was
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sufficient to raise a genuine dispute of material fact as to whether Dr. Richman’s
care was objectively “medically unacceptable.” See Toguchi v. Chung, 391 F.3d
1051, 1058 (9th Cir. 2004) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th
Cir. 1996)).
There is also conflicting testimony about the degree of pain Righetti
suffered. In deciding not to examine Righetti and not to operate, Dr. Richman
assumed that Righetti’s pain was not “intolerable,” and that Righetti was receiving
continuous medical care and appropriate pain medication at the prison. These
assumptions conflict, however, with the prison’s decision to send Righetti to the
hospital emergency room, and with Righetti’s report of pain of 8 on a 1 to 10 scale
when he was at the hospital. This conflict is sufficient to raise a genuine dispute
of material fact as to whether Dr. Richman “chose this course [of treatment] in
conscious disregard of an excessive risk” to Righetti’s serious medical needs.
Jackson, 90 F.3d at 332 (to establish that a difference of medical opinion amounted
to deliberate indifference, a prisoner must show that the defendant’s chosen course
of treatment was medically unacceptable and taken in conscious disregard of an
excessive risk to the prisoner’s health).
Dr. Richman’s subjective knowledge also may be inferred from the
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obviousness of risks he ignored. See Farmer v. Brennan, 511 U.S. 825, 842
(1994) (“[A] factfinder may conclude that a prison official knew of a substantial
risk from the very fact that the risk was obvious.”); Lolli v. Cty. of Orange, 351
F.3d 410, 420-21 (9th Cir. 2003) (“[D]eliberate indifference to medical needs may
be shown by circumstantial evidence when the facts are sufficient to demonstrate
that a defendant actually knew of a risk of harm.”). The presence of fact disputes
on the obviousness of risks to Righetti means that there also are fact disputes on
subjective knowledge.
Accordingly, we reverse the district court’s grant of summary judgment and
remand for further proceedings.
The parties shall bear their own costs on appeal.
REVERSED and REMANDED.
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