Paul Schwartz v. Ofelia Tatad;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL SCHWARTZ,
Plaintiff-Appellant,
v.
OFELIA TATAD; et al.,
Defendants-Appellees.
No. 17-17166
D.C. No. 4:14-cv-02013-JAS
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted November 13, 2019
Pasadena, California
Before: GRABER, BERZON, and CHRISTEN, Circuit Judges.
Paul Schwartz appeals from the district court’s dismissal and grant of
summary judgment on his claims under the Eighth Amendment that prison
administrators and medical professionals were deliberately indifferent in treating
serious illnesses he experienced while incarcerated. Estelle v. Gamble, 429 U.S.
97, 104–06 (1976). We affirm in part and reverse in part.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. We have jurisdiction over the appeal of the order dismissing four of the
defendants—Kate Adkins, Ann Ash, Becky Clay, and Christopher Lamb. Schwartz
designated the district court’s “order granting Summary Judgment and Judgment
filed on September 26, 2017” as the subject of his appeal. The final judgment
encompassed the district court’s earlier dismissal order. See Fed R. Civ. P. 54(b)
(establishing that a district court must ordinarily enter final judgment only once for
all parties).
2. The district court appropriately dismissed Schwartz’s claims against those
four defendants without prejudice under 28 U.S.C. § 1915A. Although district
courts must give pro se plaintiffs “the benefit of any doubt,” Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citation omitted), Schwartz’s filings were too vague
to state a plausible claim.
As the dismissal was without prejudice, on remand Schwartz can seek leave
to amend his claims against Clay and Lamb, the warden and associate warden of
FCI Tucson. “Leave to amend should be granted if it appears at all possible that the
plaintiff can correct the defect.” Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir.
2000) (en banc) (citation omitted). This principle has particular force for pro se
plaintiffs. Id. There is at least some evidence in the record as developed after the
district court dismissed the four defendants that Clay and Lamb “knew of the
violations [alleged by Schwartz] and failed to act to prevent them.” Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989). In particular, Schwartz repeatedly emailed
both Clay and Lamb to tell them that he was not receiving care.
3. We reverse the grant of summary judgment for Ofelia Tatad. Throughout
much of Schwartz’s time at FCI Tucson, Tatad was Schwartz’s frontline care
provider. Delays in providing treatment can constitute deliberate indifference
where the delay causes suffering. See Wilhelm v. Rotman, 680 F.3d 1113, 1122–23,
1123 n.8 (9th Cir. 2012). According to Schwartz, Tatad repeatedly failed to record
his visits to FCI Tucson’s clinic or refer him for further care, even though he
reported—and was documented as having—serious symptoms, such as tachycardia
and blood in his urine. As a result, viewing the current record most favorably to
Schwartz, a jury could find that Tatad “den[ied], delay[ed] or intentionally
interfere[d] with [Schwartz’s] medical treatment.” Jett v. Penner, 439 F.3d 1091,
1096 (9th Cir. 2006) (citation omitted).
4. The district court correctly granted summary judgment in favor of
Thomas Longfellow, FCI Tucson’s medical director. Longfellow never treated
Schwartz. To be responsible for an Eighth Amendment violation, Longfellow, like
Clay and Lamb, had to “kn[o]w of the violations [Schwartz endured] and fail[] to
act to prevent them.” Taylor, 880 F.2d at 1045. Although Longfellow periodically
reviewed Schwartz’s care and signed off on certain procedures, there is no
evidence that Longfellow ever knew of or deliberately disregarded any violations

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of Schwartz’s constitutional rights.
As chair of the Utilization Review Committee, Longfellow denied two
requests for specialty consultations. But, rather than repeated denials of specialty
care requests,1 see Snow v. McDaniel, 681 F.3d 978, 987, 989 (9th Cir. 2012),
overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir.
2014) (en banc), these were isolated denials that, on their own, say nothing about
Longfellow’s responsibility for any injurious delays in Schwartz’s treatment.
AFFIRMED in part; REVERSED in part.
1 In fact, Schwartz saw one of the specialists a month after the initial request
was denied.

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