John Silvis v. R. Davis ( 2014 )

FILED
OCT 30 2014
NOT FOR PUBLICATION MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN ROBERT SILVIS, No. 11-15776
Plaintiff - Appellant, D.C. No. 1:07-cv-00332-LJO-GSA
v.
MEMORANDUM*
R. DAVIS, Doctor; WEED, Doctor;
PAPPENFUS, Doctor; DENNIS SMITH,
Doctor; DENIS PERRY; BRIAN M.
REES,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted October 7, 2014
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
John Silvis appeals from the district court’s grant of summary judgment in
favor of the defendants in his 42 U.S.C. § 1983 claim. We affirm.
The district court properly determined that there is no genuine dispute as to
any material facts that would establish that the prison doctors violated Silvis’s
rights under the Eighth Amendment. See Fed. R. Civ. P. 56.
To establish that the prison doctors were deliberately indifferent to a serious
medical need in violation of the Eighth Amendment, Silvis must show that the
doctors were aware of facts from which they could draw an inference that a
substantial risk of serious harm existed and that they actually drew such an
inference. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (citing Farmer
v. Brennan, 511 U.S. 825, 837 (1994)). Silvis has failed to produce sufficient
evidence that the prison doctors, prior to Silvis’s ultimate diagnosis with acoustic
neuroma, intentionally denied him medical care. The evidence Silvis has produced
regarding his requests for medical attention is insufficient to show that the prison
doctors had subjective awareness of his condition prior to his diagnosis.
First, although Silvis’s amended complaint recounts two conversations with
defendant Dr. Perry and one with defendant Dr. Rees in 2002, his same complaint
admits that after such conversations, Silvis received a cane to treat his dizziness
and was referred to an outside ear, nose, and throat specialist. And while Silvis’s
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complaint and the contact log he created allege that he wrote letters to the prison
doctors explaining his symptoms, he has produced no evidence that any of the
defendants actually received such letters. Moreover, Silvis failed to produce
copies of the alleged letters and the summaries offered in his contact log are too
conclusory to create a genuine issue of material fact as to the doctors’ subjective
state of mind. At most, the letters would have given the doctors awareness of facts
from which they could have drawn an inference,1 but Silvis failed to produce
evidence that they actually drew that inference. Thus, even if the court were to
assume that the doctors received the letters, under the Supreme Court’s holding in
Farmer v. Brennan, Silvis’s evidence is insufficient to show that the prison doctors
had subjective awareness of any serious medical need. See Farmer, 511 U.S. at
837.
After his diagnosis, Silvis received adequate medical treatment under the
direction of the prison doctors in this case. His disagreement with respect to the
types of treatments offered is not sufficient to defeat the defendants’ motion for
1
For instance, Silvis’s contact log repeatedly summarizes his letters by
asserting that they explained his “medical problems,” “symptoms,” and
“condition,” but there is nothing in the log or in any other evidence Silvis has
produced that shows that the prison doctors actually used this information to draw
the inference that Silvis was experiencing a serious medical need.
3
summary judgment. See Estelle v. Gamble, 429 U.S. 97, 107 (1976); Sanchez v.
Vild, 891 F.2d 240, 242 (9th Cir. 1989).
AFFIRMED.
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FILED
Silvis v. Davis, No. 11-15776 OCT 30 2014
MOLLY C. DWYER, CLERK
THOMAS, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I agree with the majority that the district court properly granted summary
judgment on Silvis’s post-diagnosis claims. However, because I believe there were
genuine issues of material fact concerning his pre-diagnosis claims, I respectfully
dissent in part.
Viewing the evidence before the district court in the light most favorable to
Silvis, there were triable issues of fact as to whether Drs. Pappenfus, Perry, Smith,
Rees, and Davis were deliberately indifferent to Silvis’s serious medical needs
before his brain tumor was diagnosed. As we recently observed:
Prison officials violate the Eighth Amendment if they are deliberately
indifferent to a prisoner’s serious medical needs. A medical need is
serious if failure to treat it will result in significant injury or the
unnecessary and wanton infliction of pain. A prison official is
deliberately indifferent to that need if he knows of and disregards an
excessive risk to inmate health.
Peralta v. Dillard, 744 F.3d 1076, 1081–82 (9th Cir. 2014) (en banc) (citations,
quotation marks, and brackets omitted).
The fact that Silvis’s brain tumor was a serious medical need is not disputed.
Silvis asserts that three sources of evidence in the record—his verified complaint,
his signed declaration in opposition to summary judgment, and a log of contacts he
prepared and declared truthful in an accompanying signed declaration—raised a
genuine dispute as to the doctors’ deliberate indifference. His verified complaint
alleged that he informed prison officials that he experienced seizures, dizziness,
headaches, and hearing loss prior to the discovery of his brain tumor. It
specifically alleged that he saw Drs. Perry and Rees in 2002 and informed them of
his symptoms and medical history. It further stated that he advised Dr. Perry of
worsening symptoms in July 2002. Doctors allegedly provided only a cane in
response to these visits. Silvis’s signed declaration in support of his opposition to
summary judgment presented the same allegations in further detail. It also alleged
that Silvis began writing letters to Drs. Davis, Pappenfus, Perry, and Smith
explaining his symptoms upon his arrival at the prison and that he wrote
approximately ten such letters from that time until his tumor was diagnosed in May
2003. The contact log Silvis prepared and lodged with the district court after the
motion for summary judgment was fully briefed specifically documented these
contacts and many others. The log implicated all appellees except Dr. Weed in
Silvis’s pre-diagnosis care. A declaration signed by Silvis and submitted
concurrent to his log stated under the penalty of perjury that the log was accurate
and truthful.
The district court granted summary judgment to the doctors because Silvis
did not show that they consciously disregarded his need for treatment. The court
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credited the doctors’ statements that they never refused care and did not
intentionally cause Silvis any injury or harm, and concluded that Silvis failed to
offer any admissible evidence to raise a genuine dispute of material fact.
The district court’s treatment of Silvis’s evidence of the doctors’ deliberate
indifference was error. “Regardless of how evidenced, deliberate indifference to a
prisoner’s serious illness or injury states a cause of action under § 1983.” Estelle v.
Gamble, 429 U.S. 97, 105 (1976). “The requirement of deliberate indifference is
less stringent in cases involving a prisoner’s medical needs than in other cases
involving harm to incarcerated individuals because “[t]he State’s responsibility to
provide inmates with medical care ordinarily does not conflict with competing
administrative concerns.” McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992)
(quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)), overruled on other grounds
by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). In a case
involving deferral or denial of needed surgery, “[a] defendant must purposefully
ignore or fail to respond to a prisoner’s pain or possible medical need” and the
denial of care must be harmful. Id. “Once those prerequisites are met, it is up to
the factfinder to determine whether or not the defendant was deliberately
indifferent to the prisoner’s medical needs.” Id. (quotation marks omitted).
Silvis submitted ample evidence to show that Drs. Pappenfus, Perry, Smith,
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Rees, and Davis purposefully ignored or failed to respond to his medical needs. He
thereby met his burden to “go beyond the pleadings” and by his own affidavits or
other evidence “designate specific facts showing that there is a genuine issue for
trial.” See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotation marks
omitted). Silvis’s verified complaint and other pleadings are sufficient evidence to
oppose a motion for summary judgment. See Johnson v. Meltzer, 134 F.3d 1393,
1399–400 (9th Cir. 1998) (verified motion functionally equivalent to an affidavit);
McElyea v. Babbitt, 833 F.2d 196, 197–98 n.1 (9th Cir. 1987) (verified complaint
meets Celotex affidavit requirement).
“[This court has] held consistently that courts should construe liberally
motion papers and pleadings filed by pro se inmates and should avoid applying
summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th
Cir. 2010) (citation omitted). The district court did not follow this command when
it granted summary judgment without credit to Silvis’s sworn complaint,
declaration, and contact log. The contentions, statements, and documents Silvis
produced below raise questions of fact regarding his pre-diagnosis care
inappropriate for resolution on summary judgment. Therefore, I respectfully
dissent.
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