Enrique Montijo v. Unknown Swaney ( 2018 )

FILED
NOT FOR PUBLICATION
OCT 30 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENRIQUE MONTIJO, No. 17-16465
Plaintiff-Appellee, D.C. No. 4:13-cv-01439-DCB
v.
MEMORANDUM*
UNKNOWN SWANEY; UNKNOWN
BENNETT,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted September 14, 2018
San Francisco, California
Before: SCHROEDER, SILER,** and GRABER, Circuit Judges.
Defendants Bennett and Swaney appeal the district court’s denial of
summary judgment on the issue of qualified immunity. On de novo review,
Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, Circuit Judge for the U.S. Court of
Appeals for the Sixth Circuit, sitting by designation.
1. Viewing the evidence in the light most favorable to Plaintiff, id., there
exist questions of fact as to whether Bennett actually knew of Plaintiff’s serious
medical needs and as to whether Bennett responded to those needs with deliberate
indifference. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (stating
elements of a claim of deliberate indifference under the Eighth Amendment).
First, some evidence suggests that Bennett knew of Plaintiff’s serious
medical needs. Plaintiff claims that, on the dates when Bennett saw him, he was
unable to walk, eat, open his eyes, chew, talk, or breathe without gasping for
air—all clearly observable and severe symptoms. There are thus questions of fact
as to whether Bennett actually knew of Plaintiff’s condition. See Farmer v.
Brennan, 511 U.S. 825, 842 (1994) (explaining that "a factfinder may conclude
that a prison official knew of a substantial risk from the very fact that the risk was
obvious").
Second, some evidence suggests that Bennett’s response to Plaintiff’s needs
was unreasonable. Bennett observed Plaintiff suffering from grave symptoms and
did nothing to obtain help for Plaintiff. The denial of medical care in the face of an
obvious emergency constitutes deliberate indifference. Hoptowit v. Ray, 682 F.2d
1237, 1259 (9th Cir. 1982), overruled on other grounds by Sandin v. Conner, 515
U.S. 472 (1995).
2
The evidence, viewed in Plaintiff’s favor, does not support Bennett’s
argument that he was relying on the medical opinions of the prison’s nursing staff.
Although non-medical staff are entitled to qualified immunity when they act (or
fail to act) in reliance on a "bona fide medical opinion," Hamby, 821 F.3d at 1095,1
on the present record, there was no bona fide medical opinion in this case—or, at
least, not one of which Bennett was aware. Furthermore, Plaintiff’s cellmate told
Bennett that the nursing staff refused to help or examine him, and Bennett, after
being told as much, did nothing, in the face of serious symptoms, to verify that
Plaintiff was receiving adequate treatment. Accordingly, viewing the evidence in
Plaintiff’s favor, Bennett denied Plaintiff access to treatment even though he had
reason to think that Plaintiff was receiving no care at all.
2. There exist questions of fact with respect to Swaney’s conduct, too.
First, the obviousness of Plaintiff’s alleged symptoms suggests that Swaney,
like Bennett, actually knew of Defendant’s serious medical needs. Farmer, 511
U.S. at 842.
Second, some evidence suggests that Swaney responded to those needs with
deliberate indifference. Viewing the evidence in Plaintiff’s favor, Swaney visited
1
We assume, without deciding, that Defendants would be entitled to rely on
a nurse’s opinion, as distinct from a doctor’s opinion.
3
Plaintiff’s cell on or around August 1, 2012, observed him suffering from grave
symptoms, and did nothing. Although Swaney argues that he declined to take
action because he was relying on the opinions of the prison’s medical staff,
Swaney testified that, before August 2, he was not personally aware of whether
medical staff had seen Plaintiff. There is thus a question of fact as to whether
Swaney acted with deliberate indifference by failing to obtain help for Plaintiff on
August 1.
3. Viewing the evidence in Plaintiff’s favor, Defendants violated clearly
established law. Hamby, 821 F.3d at 1090–91. It is "beyond debate," id. at 1092,
that a prison official acts with deliberate indifference when the official denies
medical care to a prisoner exhibiting serious symptoms of pain or disease, Hunt v.
Dental Dep’t, 865 F.2d 198, 201 (9th Cir. 1989). Defendants’ argument that they
did not violate clearly established law because they acted pursuant to the nursing
staff’s opinions is unavailing because that argument depends on the resolution of
disputed issues of fact, in Defendants’ favor. See Wilkins v. City of Oakland, 350
F.3d 949, 956 (9th Cir. 2003) ("Where the officers’ entitlement to qualified
immunity depends on the resolution of disputed issues of fact in their favor, and
against the non-moving party, summary judgment is not appropriate.").
AFFIRMED.
4
FILED
Montijo v. Unknown Swaney, No. 17-16465 OCT 30 2018
MOLLY C. DWYER, CLERK
SILER, Circuit Judge, dissenting. U.S. COURT OF APPEALS
I respectfully dissent in this case with regard to the question of qualified
immunity. There is no existing case law which describes the conduct of either
Bennett or Swaney as having violated Montijo’s constitutional rights. See Hamby
v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016). Bennett escorted a nurse to
Montijo’s cell when that nurse checked the vital signs of Montijo. On the
following day, when Bennett came to Montijo’s cell, Bennett went to medical,
returned to the cell, and told Montijo that he had talked to the medical staff and a
nurse said she had seen Montijo and there was nothing wrong with him.
In Swaney’s case, he informed medical staff of Montijo’s complaints either
before or after he spoke to Montijo, but the medical staff said that they had already
addressed the medical issues that morning and that whatever was wrong with
Montijo “didn’t require any further response.” Both officers relied upon the
medical staff at the institution and did not violate any clearly established
constitutional right by taking no further action. They had a right to rely upon the
professional staff. Therefore I would grant qualified immunity to both officers in
this case.
1