Hwa Sung Sim v. MONICA DURAN, Correctional Officer; JOHAL, Doctor; PATEL, Doctor

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HWA SUNG SIM,
Plaintiff-Appellant,
v.
MONICA DURAN, Correctional Officer;
JOHAL, Doctor; PATEL, Doctor,
Defendants-Appellees,
and
FIGUEROA, Correctional Lieutenant; J.
BRIDGES, CCPOA Representative; MASI,
Correctional Officer; S. HANZEL,
Correctional Officer; B. CHAMBERS,
Correctional Officer; J. SILVA, Correctional
Officer; J. STEGALL, Correctional Officer;
DE LA CRUZ, Registered Nurse; GARZA,
Sergeant; VENEGAS, Sergeant;
ARELLANO, Correctional Officer;
AYALA, Correctional Officer; ACEVES;
FRUDDEN; TOWLE; POST; M. DURAN,
Defendants.
No. 19-17291
D.C. No. 1:16-cv-01051-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Stanley Albert Boone, Magistrate Judge, Presiding
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Argued and Submitted November 17, 2022
San Francisco, California
Before: S.R. THOMAS, BENNETT, and SUNG, Circuit Judges.
Plaintiff Hwa Sung Sim is a former state prisoner who was confined at
Wasco State Prison. In 2014, Sim was a bystander during a prison altercation, but,
while seated some distance from the participants, was injured by a rubber sponge
round fired by defendant Correctional Officer Duran. Over the next few months,
Sim was treated by defendants Drs. Patel and Johal, physicians employed by the
California Department of Corrections and Rehabilitation. Sim sued Duran, Dr.
Patel, and Dr. Johal under 42 U.S.C. § 1983. He claims Officer Duran used
excessive force and intentionally fired her weapon at him during the incident. He
claims Drs. Patel and Johal were deliberately indifferent to his medical needs in
their treatment of him.
Sim appeals the district court’s grant of summary judgment to Drs. Patel and
Johal. He also appeals rulings the district court made before and during the trial
that resulted in a jury verdict for Officer Duran. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
1. We review a grant of summary judgment de novo. Nunez v. Duncan,
591 F.3d 1217, 1222 (9th Cir. 2010). A movant is entitled to summary judgment if
he shows that there is “no genuine issue as to any material fact and [he] is entitled

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to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue of material fact
is genuine if there is sufficient evidence for a reasonable jury to return a verdict for
the non-moving party.” Lemire v. Cal. Dept. of Corr. & Rehab., 726 F.3d 1062,
1074 (9th Cir. 2013) (cleaned up). “We view the evidence . . . in the light most
favorable to the non-moving party and draw all reasonable inferences in favor of
that party.” Nunez, 591 F.3d at 1222–23 (internal quotation marks and citation
omitted).
Under the Eighth Amendment, “[t]he government has an obligation to
provide medical care for those whom it punishes by incarceration,” and cannot be
deliberately indifferent to the medical needs of its prisoners. Lopez v. Smith, 203
F.3d 1122, 1131 (9th Cir. 2000) (en banc). Our test for deliberate indifference is
two-pronged: “First, the plaintiff must show a serious medical need by
demonstrating that failure to treat a prisoner’s condition could result in further
significant injury or the unnecessary and wanton infliction of pain. Second, the
plaintiff must show the defendant’s response to the need was deliberately
indifferent.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal
quotation marks and citation omitted). “The second prong requires showing: ‘(a) a
purposeful act or failure to respond to a prisoner’s pain or possible medical need
and (b) harm caused by the indifference.’” Wilhelm v. Rotman, 680 F.3d 1113,
1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096).

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Dr. Patel cannot be held liable for the nursing staff’s alleged failure to
conduct the checks of Sim he ordered because § 1983 imposes no vicarious
liability. Lemire, 726 F.3d at 1074. Even if Dr. Patel knew that the nursing checks
he had ordered were not carried out, or we view Sim’s claim as being about Dr.
Patel’s direct responsibility, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical
malpractice’ will not support” a deliberate-indifference cause of action. Broughton
v. Cutter Lab’ys, 622 F.2d 458, 460 (9th Cir. 1980) (quoting Estelle v. Gamble,
429 U.S. 97, 105–06 (1976)).
Drs. Patel and Johal’s direct care following Sim’s injury also does not rise to
the level of deliberate indifference. The undisputed facts show that on the day of
Sim’s injury, Dr. Patel clinically evaluated Sim, assessed him as having a scalp
laceration, and ordered his transport to a nearby hospital. Upon Sim’s return from
the hospital, Dr. Patel reviewed his discharge instructions and ordered antibiotics
and painkillers; instructed nursing staff to check on Sim periodically; and ordered a
follow-up exam with a physician, additional topical antibiotics for Sim’s surgical
staples, and neurology checks. In the following weeks, Dr. Patel ordered Sim’s
transport to the hospital again; placed multiple requests for CT scans; ordered
medication for him on different occasions; and ordered that Sim should be
provided limited duty, low bunk, and low-tier housing accommodations.
Meanwhile, Dr. Johal ordered and adjusted medications; ordered follow-up

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appointments; ordered laboratory tests; and requested consulting with neurologists,
a psychologist, and an optometrist.
Sim argues that the district court “improperly disregarded the opinions of
Dr. Zardouz,” his medical expert. But as the district court correctly found, Dr.
Zardouz “does not attribute any fault to the specific treatment provided by” either
doctor, or “identify any different course of treatment that would have been
appropriate.” Even if Dr. Zardouz had so opined, that would not matter here given
the undisputed facts. “A difference of opinion between a physician and the
prisoner—or between medical professionals—concerning what medical care is
appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681
F.3d 978, 987 (9th Cir. 2012), overruled on other grounds by Peralta v. Dillard,
744 F.3d 1076 (9th Cir. 2014). Sim would have to show that Drs. Patel and Johal’s
chosen course of treatment was “medically unacceptable” under the circumstances.
Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (citation omitted). But
neither Sim’s briefing—below or on appeal—nor Dr. Zardouz’s opinions allege
anything approaching that high bar.
Finally, we disagree with Sim’s contention that the district court did not
adequately weigh Drs. Patel and Johal’s alleged statements accusing Sim of
malingering. Since “verbal harassment generally does not violate the Eighth
Amendment,” Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), these

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statements are only relevant to the doctors’ alleged “ulterior motive and failure to
take” Sim’s condition seriously. But as the district court noted, we look not only to
what the doctors supposedly said, but also to what they actually did. And Drs.
Patel and Johal were not deliberately indifferent to Sim’s serious medical needs.
2. A trial court’s decision to exclude expert evidence is reviewed for
abuse of discretion. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
Even if there is evidentiary error, “[a] party seeking reversal . . . must show that the
error was prejudicial, and that the verdict was ‘more probably than not’ affected as
a result.” Boyd v. City & Cnty. of San Francisco, 576 F.3d 938, 943 (9th Cir.
2009) (citation omitted).
But here, we review the district court’s decision to admit Lt. Prentice’s
testimony for plain error, because the court’s ruling on Sim’s motion in limine was
provisional, not definitive, and Sim failed to re-raise the issue during trial. United
States v. Tamman, 782 F.3d 543, 552 n.2 (9th Cir. 2015) (citing United States v.
Bishop, 291 F.3d 1100, 1108 (9th Cir. 2002)). “Plain error is (1) error, (2) that is
plain, and (3) that affects substantial rights.” United States v. Hammons, 558 F.3d
1100, 1103 (9th Cir. 2009) (internal quotation marks omitted) (quoting United
States v. Ameline, 409 F.3d 1073, 1078 (en banc)). And even once that test is met,
relief is available only if the error “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id.

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On appeal, Sim’s only objection to Lt. Prentice’s testimony is that he was
allowed to opine as to the possibility of a ricochet from the type of round that
Officer Duran fired. Lt. Prentice relied on his experience as a correctional officer,
his experience with the 40-millimeter launcher used by Officer Duran, and his
simulated re-creation of the incident. The district court did not err in admitting the
testimony, much less plainly err.
3. The district court also did not abuse its discretion in limiting
testimony from Roger Clark, Sim’s expert. Clark did not conduct any forensic
analysis or scene reconstruction; was only trained in a 37-millimeter launcher and
not in a 40-millimeter launcher; and had no experience with the particular rubber
sponge round fired by Officer Duran. An expert may not base his opinion on
speculation or conjecture. See General Elec. Co. v. Joiner, 522 U.S. 136, 144–46
(1997). The district court acted well within its discretion in excluding the opinions
at issue.
4. Sim contends that the district court precluded him from presenting
evidence of a “code of silence” between police officers that would demonstrate
their bias or prejudice. But Sim points to no ruling on this issue we can review.
Sim proffered no code-of-silence question, testimony, or evidence, and the district
court excluded none.
AFFIRMED.

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