Patrick K. Gibson v. EDITH KROHA, ARNP,Washington State Dept of Corrections, Clallam Bay Correctional…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK K. GIBSON,
Plaintiff-Appellant,
v.
EDITH KROHA, ARNP,Washington State
Dept of Corrections, Clallam Bay
Correctional Center (DOC),
Defendant-Appellee,
and
WASHINGTON STATE DEPARTMENT
OF CORRECTIONS; et al.,
Defendants.
No. 20-35697
D.C. No. 3:17-cv-05187-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted August 4, 2021**
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit
Judges.
Patrick Gibson appeals pro se from the district court’s grant of summary
judgment in favor of Edith Kroha on the ground that she was entitled to qualified
immunity. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court correctly concluded that no clearly established law put
Kroha on notice that she violated the Eighth Amendment when she delayed
submitting information about Gibson’s work-related hernia to the Department of
Labor and Industries. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (leaving
to the discretion of the lower courts which prong of the qualified immunity analysis
to address first). A right is clearly established only where “the defendants should
have known that their specific actions were unconstitutional given the specific facts
under review.” Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016). It is “not
indisputably unconstitutional” to treat a reducible hernia without offering surgery
where treatments like monitoring, a hernia belt, medication, and behavioral changes
are offered. Id. at 1093–94.
Here, Kroha did not recommend surgery after diagnosing Gibson with a
reducible and unincarcerated hernia; instead, she advised him to lift no more than
ten pounds, reviewed the proper lifting technique, and instructed him to return if his
symptoms worsened. Gibson did not seek further hernia treatment at the health care
unit until the paperwork omission had been corrected, and at his second visit, his

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hernia remained reducible and unincarcerated. Because surgery was neither a
recommended treatment nor one Gibson was entitled to receive at the time, it was
not indisputably unconstitutional for Kroha to delay paperwork that would have been
required for surgery. See Hamby, 821 F.3d at 1093–94.
AFFIRMED.

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