Patrick Gibson v. Washington State Department Of

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PATRICK K. GIBSON, No. 18-35440
Plaintiff-Appellant, D.C. No. 3:17-cv-05187-RBL
Western District of Washington,
v. Tacoma
WASHINGTON STATE DEPARTMENT ORDER
OF CORRECTIONS; et al.,
Defendants-Appellees.
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
The memorandum disposition filed on April 25, 2019, is withdrawn. A
replacement memorandum disposition is being filed concurrently with this order.
No further petitions for rehearing will be entertained.
Appellee Kroha’s petition for panel rehearing (Docket Entry No. 25) is
denied.
Gibson’s motion to appoint counsel (Docket Entry No. 26) is denied without
prejudice to refiling in the district court.
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK K. GIBSON, No. 18-35440
Plaintiff-Appellant, D.C. No. 3:17-cv-05187-RBL
v.
MEMORANDUM*
WASHINGTON STATE DEPARTMENT
OF CORRECTIONS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
Washington state prisoner Patrick K. Gibson appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2004). We affirm in part, reverse in part, and remand.
The district court properly granted summary judgment on Gibson’s
deliberate indifference claim arising from the medical treatment defendants
provided because Gibson failed to raise a genuine dispute of material fact as to
whether defendants’ treatment was medically unacceptable or amounted to more
than mere negligence. See id. at 1057-60 (a prison official is deliberately
indifferent only if he or she knows of and disregards an excessive risk to inmate
health; medical malpractice, negligence, or a difference of opinion concerning the
course of treatment does not amount to deliberate indifference).
The district court properly granted summary judgment on Gibson’s
deliberate indifference claim arising from defendants’ failure to comply with their
own internal procedures because failure to follow departmental regulations alone
does not establish a constitutional violation. See Cousins v. Lockyer, 568 F.3d
1063, 1070-71 (9th Cir. 2009) (failure to follow internal prison policy does not
amount to a constitutional violation).
The district court properly granted summary judgment on Gibson’s
deliberate indifference claim against defendant Fetroe arising from the delay in
Gibson’s medical treatment because Gibson failed to raise a genuine dispute of
material fact as to whether Fetroe was personally involved in the delay of Gibson’s
treatment. See Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (discussing
2 18-35440
the requirements for establishing supervisory liability).
The district court erred in granting summary judgment on Gibson’s
deliberate indifference claim against defendant Kroha arising from the delay in
Gibson’s medical treatment. The district court concluded that Kroha lacked the
requisite intent to delay Gibson’s treatment based in part on Kroha’s assertion that
in June 2015 she completed a report-of-accident form and placed it in Gibson’s
file. However, Gibson offered evidence suggesting that Kroha did not complete
this form, which has never been accounted for or located, and that months later
Gibson obtained a blank report-of-accident form from his supervisor that Gibson
ultimately submitted to the Department of Labor and Industries. See Hutchinson v.
United States, 838 F.2d 390, 394 (9th Cir. 1988) (deliberate indifference “may
appear when prison officials deny, delay or intentionally interfere with medical
treatment”). Because there is a genuine dispute of material fact as to whether
Kroha intentionally delayed Gibson’s medical treatment, we reverse the judgment
on this claim only and remand for further proceedings. The district court did not
address whether Kroha was entitled to qualified immunity, and we express no
opinion on that subject.
Gibson’s request to supplement the record, set forth in his opening brief, is
denied. Appellees’ motion to strike portions of Gibson’s opening brief (Docket
Entry No. 14) is denied.
3 18-35440
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
4 18-35440