Joe Abbott v. E. TOOTELL, Doctor; J. GRANT, Doctor

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOE ABBOTT,
Plaintiff - Appellee,
v.
E. TOOTELL, Doctor; J. GRANT, Doctor,
Defendants - Appellants.
No. 14-15599
D.C. No. 5:11-cv-00183-LHK
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Defendants Drs. Grant and Tootell appeal from the district court’s denial of
their motion for summary judgment on the ground of qualified immunity. We
have jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291. Mitchell
v. Forsyth, 472 U.S. 511, 526-27 (1985). We review de novo the district court’s
FILED
JAN 27 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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ruling on qualified immunity, George v. Edholm, 752 F.3d 1206, 1214 (9th Cir.
2014), and we affirm.
The district court properly denied summary judgment to defendants Grant
and Tootell on Abbott’s Eighth Amendment deliberate indifference claim because
Abbott raised a genuine dispute of material fact as to whether defendants acted
with deliberate indifference to his shoulder pain. See Farmer v. Brennan, 511 U.S.
825, 837 (1994) (to establish an Eighth Amendment claim, a prison “official must
both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.”). Moreover, the
law was clearly established at the time of defendants’ conduct that knowledge and
conscious disregard of “an excessive risk to inmate health” violates the Eighth
Amendment. Id.; see also Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080, 2083 (2011)
(setting forth qualified immunity test and recognizing that a clearly established
right does “not require a case directly on point”).
AFFIRMED.
14-15599 2

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