Earnest Woods, II v. Tom Carey , 488 F. App'x 194 ( 2012 )


Menu:
  •                                                                               FILED
    NOT FOR PUBLICATION                                JUL 06 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    EARNEST CASSELL WOODS, II,                       No. 09-15548
    Plaintiff - Appellant,             D.C. No. 2:04-cv-01225-LKK-
    GGH
    v.
    TOM L. CAREY, Warden; et al.,                    MEMORANDUM*
    Defendants - Appellees.
    EARNEST CASSELL WOODS, II,                       No. 09-16113
    Plaintiff - Appellee,              D.C. No. 2:04-cv-01225-LKK-
    GGH
    v.
    TOM L. CAREY, Warden and T.
    DICKENSON,
    Defendants,
    and
    SANTOS CERVANTES,
    Defendant - Appellant.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    Appeal from the United States District Court
    for the Eastern District of California
    Lawrence K. Karlton, Senior District Judge, Presiding
    Argued and Submitted April 18, 2012
    San Francisco, California
    Before: REINHARDT, NOONAN, and MURGUIA, Circuit Judges.
    Earnest Cassell Woods, a former inmate of California State Prison, Solano,
    won a jury verdict and an award of $1500 in his case against Solano Warden Tom
    Carey, in which he alleged that Appeals Coordinator Santos Cervantes was
    deliberately indifferent to his serious medical needs in violation of the Eighth
    Amendment. Despite the verdict in his favor, Woods nonetheless appeals various
    rulings by the district court. Cervantes cross-appeals the judgment and the award
    entered against him.
    We reverse the district court’s grant of summary judgment for Carey in his
    individual capacity and the grant of the defendants’ motion to dismiss for failure to
    exhaust related to Woods’ December 3, 2003 grievance in a separate opinion. We
    affirm the district court in all other respects.1
    1
    We also deny all of the plaintiff’s motions to take judicial notice.
    2
    1.    Woods filed thirteen motions requesting the appointment of counsel. Under
    
    28 U.S.C. § 1915
    (e)(1), the court may request an attorney to represent an indigent
    plaintiff upon a finding of “exceptional circumstances.” Terrell v. Brewer, 
    935 F.2d 1015
    , 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires
    an evaluation of both ‘the likelihood of success on the merits [and] the ability of
    the petitioner to articulate his claims pro se in light of the complexity of the legal
    issues involved.’” Wilborn v. Escalderon, 
    789 F.2d 1328
    , 1331 (9th Cir. 1986)
    (citation omitted). Although the district court’s own self-professed confusion as to
    the legal theory underlying Woods’s claim shows that this case was complex, we
    cannot say that the complexity was so great, particularly in light of Woods’s
    success on the merits, that the denial of his motions constituted an abuse of
    discretion.
    2.    Woods requested the appointment of a dental expert to testify to the extent
    of his injury as a result of the defendants’ conduct. Although a district court may
    appoint an expert, the failure to do so is not an abuse of discretion when the case
    does not involves complex scientific evidence or issues. See Walker v. Am. Home
    Shield Long Term Disability Plan, 
    180 F.3d 1065
    , 1071 (9th Cir. 1999); McKinney
    v. Anderson, 
    924 F.2d 1500
    , 1511 (9th Cir. 1991), vacated on other grounds,
    3
    Helling v. McKinney, 
    502 U.S. 903
     (1991). There were no complex or scientific
    issues present in this case, and an expert was not necessary to explain to the jury
    the extent of Woods’s pain and suffering as a result of his inability to obtain dental
    treatment. The district court did not abuse its discretion in denying Woods’s
    motion.
    3.    Woods requested that four inmate witnesses testify and sought a writ of
    habeas corpus ad testificandum. The district court’s refusal to grant the writ on the
    basis that Woods sought to introduce testimony on matters unrelated to the
    contested issues at trial was not an abuse of discretion.
    4.    Cervantes appeals the district court’s denial of qualified immunity, arguing
    that he is entitled to immunity because there was no clearly established law that
    recognized that his conduct could amount to a constitutional violation. The
    qualified immunity analysis requires that the official’s conduct violate a
    constitutional right of the plaintiff, and that at the time of the alleged violation this
    right was clearly established with sufficient particularity that a reasonable person
    would have been aware that his conduct was unconstitutional. Saucier v. Katz, 
    533 U.S. 194
    , 201 (2001). The right to “have prison officials not be ‘deliberately
    4
    indifferent to serious medical needs’” is a sufficiently particularized right for the
    purposes of the qualified immunity analysis. Kelley v. Borg, 
    60 F.3d 664
    , 666-67
    (9th Cir. 1995) (citing Estelle v. Gamble, 
    429 U.S. 97
    , 106 (1976)). We
    recognized decades ago that “[d]ental care is one of the most important medical
    needs of inmates,” Hunt v. Dental Dep’t, 
    865 F.2d 198
    , 200 (9th Cir. 1989)
    (internal citation and quotation marks omitted), and that prison officials’ acts
    which “deny, delay, or intentionally interfere with medical treatment,” 
    id. at 201
    (quoting Hutchinson v. United States, 
    838 F.2d 390
    , 394 (9th Cir. 1984)) (internal
    quotation marks omitted), may constitute deliberate indifference. We also held
    specifically thirty years ago that “[p]rison officials show deliberate indifference to
    serious medical needs of prisoners if prisoners are unable to make their medical
    problems known to medical staff.” 
    Id. at 200
     (quoting Hoptowit v. Ray, 
    682 F.2d 1237
    , 1253 (9th Cir. 1982)) (internal quotation marks omitted). It was therefore
    clearly established in 2003 that a prison official who delays the receipt of
    necessary dental treatment has violated the inmate’s constitutional rights. Id. at
    201. Cervantes is not entitled to qualified immunity.
    5.    Cervantes seeks to have the jury’s award of $1000 in punitive damages set
    aside, contending that it was unsupported by a showing of evil motive or intent. In
    5
    Smith v. Wade, 
    461 U.S. 30
     (1983), the Supreme Court held that punitive damages
    may be awarded “not only for actual intent to injure or evil motive, but also for
    recklessness, serious indifference to or disregard for the rights of others.” 
    Id. at 48
    .
    Here, the jury’s award was supported by substantial evidence that Cervantes
    exhibited serious indifference to or disregard for the rights of others. The district
    court therefore did not err in denying Cervantes’s motion to set aside the punitive
    damage award.
    6.    Cervantes argues that there was insufficient evidence to support a jury
    verdict on the supervisory liability theory, one of two theories of liability presented
    to the jury. “Liability under section 1983 arises only upon a showing of personal
    participation by the defendant. A supervisor is liable only for constitutional
    violations of his subordinates if the supervisor participated in or directed the
    violations, or knew of the violations and failed to act to prevent them.” Taylor v.
    List, 
    880 F.2d 1040
    , 1045 (9th Cir. 1989) (citations omitted). Although there was
    no evidence presented that Cervantes supervised others, Woods alleged
    alternatively that his injury resulted directly from Cervantes’s own conduct; the
    jury could not have found in favor of Woods without concluding that Cervantes
    acted unconstitutionally.
    6
    A general verdict may stand if the court is “able to construe a general verdict
    as attributed to a theory submitted to the jury that was viable.” Webb v. Sloan, 
    330 F.3d 1158
    , 1166 (9th Cir. 2003). In determining whether to exercise this
    discretion, the court should consider: “[1] the potential for confusion of the jury
    which may have resulted from an erroneous submission of a particular claim or
    cause of action, [2] whether privileges or defenses of the losing party may apply to
    the count upon which the verdict is being sustained so that they would have been
    considered by the jury with reference to the count, [3] the strength of the evidence
    supporting the count being relied upon to sustain the verdict, and [4] the extent to
    which the same disputed issues of fact apply to one or more of the theories in
    question.” Traver v. Meshriy, 
    627 F.2d 934
    , 938-39 (9th Cir. 1980). A
    consideration of the Traver factors requires upholding the verdict on the alternative
    theory of individual liability and concluding that the district court did not abuse its
    discretion by failing to grant Cervantes’s motion for a new trial.
    AFFIRMED IN PART AND REVERSED IN PART AND REMANDED. Cost
    awarded to appellant.
    7