Christopher Jones v. Dwight Neven

FILED
NOT FOR PUBLICATION
FEB 01 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER A. JONES, No. 12-16571
Plaintiff - Appellant, D.C. No. 2:07-cv-01088-JCM-
GWF
v.
DWIGHT NEVEN, Warden; BACA; MEMORANDUM*
COLE MORROW; GREG COX;
LORENA FLORES; DUANE GRAHAM;
LOEMAN CHURCH; WILLIAM
VENNEMAN; FRITZ SCHLOTTMAN;
LASHAWN MILLER; STEVEN
MACARTHUR; JAMES GREGORY
COX,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted March 16, 2016
San Francisco, California
Before: KLEINFELD, RAWLINSON, and HURWITZ, Circuit Judges.
Appellant Christopher A. Jones (Jones) challenges the district court's grant
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of summary judgment in favor of Defendants in his action alleging that Defendants
violated his Eighth Amendment rights by: (1) failing to inform him that he tested
positive for hepatitis C; (2) exposing him to unsafe levels of environmental
tobacco smoke; and (3) forcing him to sleep on the floor in a constantly
illuminated and noisy solitary cell.
“In order to prevail on an Eighth Amendment claim for inadequate medical
care, a plaintiff must show deliberate indifference to his serious medical needs. . .
.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation and internal
quotation marks omitted). To defeat a claim of qualified immunity, a plaintiff
must establish a violation of a clearly established constitutional right. See Hamby
v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016).
1. Viewing the evidence in the light most favorable to Jones, we conclude
that genuine issues of material fact exist regarding whether Defendants were
deliberately indifferent to his Hepatitis C diagnosis. See Mendiola–Martinez v.
Arpaio, 836 F.3d 1239, 1247 (9th Cir. 2016). Hepatitis C is a chronic disease that
“quite obviously cause[s] serious health problems, and can result in death.”
Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007), as amended. Jones
tested positive for Hepatitis C in February, March, and June, 2004. During that
same period, a blood test reflected that Jones’ liver enzyme levels were elevated.
Page 2 of 5
Yet, Jones was never informed that he had hepatitis. And, during the same period,
Defendant MacArthur prescribed Jones 800mg of ibuprofen three times a day,
which posed a significant risk of liver damage to a person with Hepatitis C.
According to Jones, the ibuprofen made him “sick as a dog!” A reasonable jury
could find that Defendants’ disregard for Jones’ Hepatitis C, and the
contraindicated ibuprofen prescriptions caused Jones “the unnecessary and wanton
infliction of pain.” Colwell, 763 F.3d at 1066 (citation omitted).
Nor were Defendants entitled to qualified immunity on this claim. In Jones’
previous appeal, we held that the rights at issue in this case were clearly
established, such that a reasonable official would have known that his actions were
unconstitutional. See Jones v. Neven, 399 F. App’x. 203, 205 (9th Cir. 2010). We
reverse the grant of summary judgment in favor of Defendants on this claim.
2. The district court properly granted summary judgment in favor of
Defendants on Jones’ claim regarding his exposure to environmental tobacco
smoke. Jones failed to adequately allege that he was “exposed to unreasonably
high levels of ETS.” Helling v. McKinney, 509 U.S. 25, 35 (1993). Jones only
alleged that his cellmate was a “heavy smoker.” The phrase “heavy smoker” used
by Jones lacks the specificity reflected in Helling, where the plaintiff alleged that
Page 3 of 5
his cellmate was a “five-pack-a day smoker.” 509 U.S. at 35. We affirm the grant
of summary judgment in favor of Defendants on this claim.
3. Defendants were entitled to qualified immunity on Jones’ conditions of
confinement claim based on his sleeping arrangements. We recently clarified that
there is no clear legal guidance “on whether mattress deprivation [requiring
sleeping on a concrete floor] was an Eighth Amendment violation.” Chappell v.
Mandeville, 706 F.3d 1052, 1060 (9th Cir. 2013). Therefore, the Defendants were
not “on notice” that depriving Jones of a mattress or bed for four days was “clearly
unlawful.” Saucier v. Katz, 533 U.S. 194, 202 (2001).
4. Defendants were entitled to qualified immunity on Jones’ conditions of
confinement claims based on the constant lighting in his cell for a period of ninety-
six hours. To be sure, exposing prisoners to “constant illumination” is
unconstitutional. Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996), as amended
on denial of reh’g, 135 F.3d 1318 (9th Cir. 1998). However, it was not clearly
established in 2006 that subjecting a prisoner to illumination for four days violated
the Eighth Amendment. See Johnson v. Lewis, 217 F.3d 726, 732 (9th Cir. 2000)
(holding that “modest deprivations can also form the objective basis of a violation,
but only if such deprivations are lengthy or ongoing”) (citing Keenan, 83 F.3d at
1090-91).
Page 4 of 5
AFFIRMED IN PART, REVERSED IN PART. Each Party to bear its
costs of appeal.
Page 5 of 5
FILED
Jones v. Neven, No. 12-16571
FEB 01 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KLEINFELD, Senior Circuit Judge, concurring in part and dissenting in part:
I join the majority memorandum disposition with the exception of Part 1,
which discusses the hepatitis C claim. I would affirm on all claims.
For a plaintiff to succeed on an Eighth Amendment claim for inadequate
medical treatment, he must satisfy both an objective and a subjective standard.1
The objective standard requires the prisoner to demonstrate the treatment or lack
thereof caused a risk of “further significant injury” or the “unnecessary and wanton
infliction of pain.”2 The subjective standard requires proof that a prison official
“knows of and disregarded an excessive risk to inmate health and safety.”3
Medical negligence, much less arguably substandard care, does not establish
unconstitutional cruel and unusual punishment, and that is at most what Jones’s
evidence might establish.4
1
Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014).
2
Id. (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).
3
Id. (quoting Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)).
4
Toguchi, 391 F.3d at 1057.
The medical evidence submitted to the Superior Court shows merely that
Jones may not have been informed of a positive result on a test that the prison
routinely administers after physical altercations between inmates. The prison may
have failed to inform him of the positive result, because its focus was on preparing
him for imminent back surgery. Whether it did or not, he did not require treatment,
and his subsequent liver function testing was completely normal.
Jones has pointed to an internet download on hepatitis C that establishes that
“at certain dosages, ibuprofen can stress the liver and elevate liver enzymes in
people with hepatitis C” and that “[i]buprofen must be used with extreme caution
in the later stages of liver disease and for those on interferon therapy.” Jones has
submitted no evidence that his liver was in fact stressed, the evidence shows that
his liver enzymes were not elevated, and he has submitted no evidence that he was
in the later stages of liver disease, nor that he was on interferon therapy.
Basically, Jones had a great deal of back pain and was prescribed a double
dose of an over the counter anti-inflammatory for a short time without harm to his
liver. To characterize this medical treatment as knowing disregard of an
“excessive risk” to Jones’s health which risked “further significant injury” to his
liver or amounted to “unnecessary and wanton infliction of pain,” would trivialize
the constitutional protection against cruel and unusual punishment, as well as
running contrary to the controlling authorities.5
5
Colwell, 763 F.3d at 1066.
Jones v. Neven, No. 12-16571 FILED
HURWITZ, Circuit Judge, concurring in part and dissenting in part: FEB 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the memorandum disposition except insofar as it affirms the
district court’s summary judgment rejecting Jones’ Eighth Amendment claim
arising out of exposure to environmental tobacco smoke (ETS).
A prisoner “states a cause of action under the Eighth Amendment by alleging
that [prison officials] have, with deliberate indifference, exposed him to levels of
ETS that pose an unreasonable risk of serious damage to his future health.” Helling
v. McKinney, 509 U.S. 25, 33 (1993). Jones’ uncontested submission that he was
incarcerated with “heavy smokers,” and the defendants’ admission that smoking was
only allowed in the cell, with closed windows, raises a question of material fact as
to whether Jones was “exposed to unreasonably high levels of ETS.” Id. at 35-36.
A jury could also reasonably conclude that prison officials “deliberately
ignored” an “excessive risk to inmate health.” Johnson v. Lewis, 217 F.3d 726, 734
(9th Cir. 2000). Jones’ medical records indicated a need for a smoke-free
environment, and the defendants presented no evidence of any change in his medical
condition since that classification.