Shawn Francis v. Steven Hammond , 673 F. App'x 661 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 14 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAWN FRANCIS, No. 15-35374
Plaintiff-Appellant, D.C. No. 3:12-cv-06023-RBL
v.
MEMORANDUM*
STEVEN HAMMOND, M.D., Chief
Medical Officer, Washington Department
of Corrections, in his individual and
official capacities; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted December 8, 2016
Seattle, Washington
Before: McKEOWN, TALLMAN, and CHRISTEN, Circuit Judges.
Shawn Francis appeals the district court’s order granting summary judgment
to the defendants on his Eighth Amendment, state tort negligence, Americans
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
with Disabilities Act (ADA), and Rehabilitation Act claims. We have jurisdiction
under 28 U.S.C. § 1291. Reviewing de novo, and viewing the evidence in the light
most favorable to the non-moving party, see Hamby v. Hammond, 821 F.3d 1085,
1090 (9th Cir. 2016), we affirm.
1. The district court correctly granted summary judgment on Francis’s
Eighth Amendment claim for deliberate indifference to his serious medical needs
against defendants Warner, Hammond, Kenney, and Smith. A prison official is
deliberately indifferent “only if the official ‘knows of and disregards an excessive
risk to inmate health and safety.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th
Cir. 2014) (quoting Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)).
“Even if a prison official should have been aware of the risk, if he was not, then he
has not violated the Eighth Amendment, no matter how severe the risk.” Peralta v.
Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (internal quotation marks and
alterations omitted). Francis offered no evidence that Secretary Warner
participated in his medical decisions or knew about his shoulder injury before
receiving a letter from plaintiff’s counsel in September 2012. Moreover, Warner is
not a doctor, and even if Warner had reviewed Francis’s medical records, Francis
did not show that Warner would have been able to determine whether Francis had a
serious medical need or what the best course of treatment was. See id.2
Francis argues that Doctors Hammond, Kenney, and Smith were deliberately
indifferent to his shoulder injury because they rejected his medical providers’
recommendations for an orthopedic consultation and an MRI after conservative
treatment failed. A difference of medical opinion is “insufficient, as a matter of
law, to establish deliberate indifference.” Jackson v. McIntosh, 90 F.3d 330, 332
(9th Cir. 1996). As such, Francis did not meet his burden of showing that the
course of treatment the doctors chose “was medically unacceptable under the
circumstances,” or that it was chosen “in conscious disregard of an excessive risk
to plaintiff’s health.” Id. (internal citations omitted).
2. The district court also correctly dismissed Francis’s Eighth Amendment
and negligence claims against defendants Wells and Hayes. Neither Wells nor
Hayes ordered Francis to lift the box and its contents all at once, and Francis had
time to consider other options before he attempted to lift the box. It was not
foreseeable that Francis would lift the entire box, and Wells and Hayes did not
intentionally interfere with Francis’s lifting restriction. Cf. Lopez v. Smith, 203
F.3d 1122, 1132 (9th Cir. 2000) (plaintiff “can establish deliberate indifference by
showing that officials intentionally interfered with his medical treatment”).
3. Finally, Francis contends that the Washington Department of Corrections
violated the ADA and section 504 of the Rehabilitation Act by denying a
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reasonable accommodation for storing his legal materials in his cell in a
confidential manner. Francis bears the burden of demonstrating “‘the existence of
a reasonable accommodation’ that would enable him to participate in the program,
service, or activity at issue.” Pierce v. Cty. of Orange, 526 F.3d 1190, 1217 (9th
Cir. 2008) (quoting Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1046 (9th
Cir. 1999)). We must also consider whether the challenged policy is “reasonably
related” to the prison’s legitimate penological interests. Id.Francis did not show that allowing him to store his legal box on the floor
would have been consistent with legitimate penological interests. Nor was he
denied access to his legal materials. At best, he was denied access to the activity of
storing his legal materials in confidential folders. But Francis never requested
folders. Thus, he did not show that he was denied a reasonable accommodation.
Each party shall bear its own costs on appeal.
AFFIRMED.
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