United States v. 2006-03-08 | 04-15882 | JETT VPENNER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 LANCE JETT, No. 04-15882
Plaintiff-Appellant, D.C. No.
v. CV-02-02036-GEB 
M. PENNER, D. PETERSON, and (JFM)
CHERYL K. PLILER, Warden, OPINION
Defendants-Appellees. 
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Argued and Submitted
January 12, 2006—San Francisco, California
Filed March 9, 2006
Before: A. Wallace Tashima and William A. Fletcher,
Circuit Judges, and Edward F. Shea,* District Judge.
Opinion by Judge Shea
*The Honorable Edward F. Shea, United States District Judge for the
Eastern District of Washington, sitting by designation.
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COUNSEL
Frank J. Riebl and Kelly A. Woodruff, Farella, Braun, and
Martel, LLP, San Francisco, California, for the appellant.
Catherine Woodbridge, Deputy Attorney General, Sacra-
mento, California, for the appellees.
OPINION
E. SHEA, District Judge:
Plaintiff Lance Jett, who fractured his right thumb while
housed in California State Prison-Sacramento (“CSP-
Sacramento”), brought this action against prison doctors, M.
Penner and Douglas Peterson, and Warden Cheryl Pliler,
alleging Defendants (1) violated his constitutional rights by
being deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment and (2) violated Califor-
nia Government Code § 845.6 by failing to ensure he timely
saw an orthopedist to set and cast his fracture as directed by
the initial physician’s aftercare instructions. Mr. Jett appeals
the district court order adopting the magistrate judge’s Find-
ings and Recommendation to grant Defendants’ summary
judgment motion.
We have jurisdiction over this timely appeal and hold the
district court erred in adopting the magistrate’s Findings and
Recommendations because (1) Mr. Jett provided sufficient
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evidence, including medical slips, a letter, and a grievance, to
demonstrate the existence of a genuine issue of material fact
as to whether Dr. Penner’s failure to see Mr. Jett prior to
December 24, 2001, was deliberate indifference; (2) Mr. Jett
provided sufficient evidence to demonstrate the existence of
a triable issue of fact as to whether Dr. Penner’s post-
December 24, 2001, conduct was deliberately indifferent to
Mr. Jett’s need to have his fractured thumb set and placed in
a permanent cast; (3) Mr. Jett presented sufficient evidence to
establish the existence of a genuine issue of material fact as
to whether Dr. Peterson and Warden Pliler were deliberately
indifferent to Mr. Jett’s condition because Mr. Jett is entitled
to an inference that these individuals received the letters Mr.
Jett wrote and sent via institutional mail advising of his frac-
tured thumb and need to see an orthopedist; and (4) Mr. Jett
stated a cause of action under California Government Code
§ 845.6 because this statute requires medical care to be sum-
moned for an inmate who needs immediate medical care to
have a fractured bone set and cast. Because we reverse the
district court’s summary judgment ruling and conclude Mr.
Jett presented sufficient evidence to go to trial on these causes
of action, we need not address Mr. Jett’s contention the mag-
istrate’s discovery and scheduling orders effectively denied
him the opportunity to take depositions.
I. BACKGROUND
On October 27, 2001, Mr. Jett fell from the top bunk to the
floor of his prison cell at CSP-Sacramento and injured his
right thumb. Because the injury occurred on a Saturday and
there were no doctors on staff at the prison, Mr. Jett was taken
to Mercy Hospital emergency room in Folsom, California,
where he was seen by Dr. Kendrick Johnson. Dr. Johnson
diagnosed Mr. Jett with a fracture to the first metacarpal of
the right thumb. Dr. Johnson prescribed pain medicine, placed
Mr. Jett’s thumb in a temporary SPICA splint, and advised
Mr. Jett verbally and in written aftercare instructions not to
use his right hand and to “. . . see [an] orthopedic doctor early
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this week for recheck appointment.” When Mr. Jett returned
to CSP-Sacramento, the written aftercare instructions were
given to a medical technical assistant.
Three days later, on October 30, 2001, Mr. Jett was seen at
the prison by Charles I. Hooper, D.O. Dr. Hooper continued
Mr. Jett on pain medication. Mr. Jett’s hand was still too
swollen to place in a permanent cast.
Throughout November and most of December 2001, Mr.
Jett was not seen by a physician. He was in pain and relayed
his need to be seen by an orthopedist to set and cast his frac-
tured thumb by notifying a medical technical assistant, sub-
mitting medical slips, sending a letter to Dr. Penner on
December 8, 2001, filing a formal grievance on December 11,
2001, and sending a letter to Dr. Peterson on December 13,
2001.
On December 24, 2001, — almost two months after the
injury and diagnosis of the fractured thumb — Mr. Jett was
seen by Dr. Penner. Dr. Penner requested an x-ray and noted
that Mr. Jett’s hand was still in the SPICA splint. The x-ray
occurred on December 27, 2001, and the radiology report pre-
pared by Dr. Andrew Nicks states, “fracture of the base of the
first metacarpal is again identified. The fracture is oblique
which extends into the margin of the articular surface. The
position of the fragments appears to be unchanged. Healing is
underway. . . . The fracture is healing. Deformity and slight
angulation is stable.” Dr. Penner reviewed the x-ray on Janu-
ary 30, 2002, noting, “healing fracture.”
Following the December 24, 2001, consult with Dr. Penner,
Mr. Jett continued to submit medical slips asking to be sent
to an orthopedist to have his fractured thumb set and cast. On
January 2, 2002, Dr. Penner removed Mr. Jett’s splint, com-
menting in his notes, “I reviewed xrays which showed no
obvious fracture malalignment.” (Alteration in original.) On
January 18, 2002, Dr. Penner again saw Mr. Jett and ordered
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another x-ray to “[rule out] nonunion of fractures.” Dr. Penner
prescribed additional pain medication.
Following a February 1, 2002, visit, Dr. Penner noted that
he wanted an x-ray of the old fracture or to obtain a copy of
a previous x-ray, as well as to obtain an orthopedist consult
to follow up with the SPICA cast for the fracture. This ortho-
pedic consultation request was marked “routine” and was not
submitted by Dr. Penner until March 13, 2002.
The x-ray ordered by Dr. Penner on January 18, 2002, was
taken on February 14, 2002. The radiology report for the x-
ray states:
[a]n old fracture deformity is seen at the base of the
first metacarpal. Spurring is seen projecting from the
base of the metacarpal. The fracture is well-healed.
The articular surface is irregular. Mild, probably post
traumatic, degenerative change is present at the
metacarpophalangeal joint. No dislocation or signifi-
cant subluxation is seen. . . . Old fracture deformity
involving the first metacarpal.
The radiology report for a March 22, 2002, x-ray contained
similar findings and conclusions.
In February, Mr. Jett wrote a letter to Warden Pliler to tell
her that, even though he had put in medical slips, he had not
received a cast for his fractured hand. On February 19, 2002,
a physical therapist advised Mr. Jett to begin hand physical
therapy. Several days later, Mr. Jett was examined by Dr.
Penner on February 25, 2002. Dr. Penner noted that the base
of Mr. Jett’s thumb was tender and Mr. Jett had “limited
opposition now.” Id. This was Mr. Jett’s last visit with Dr.
Penner until August 20, 2002.
Mr. Jett was seen by Dr. Hooper on March 15, 2002. Dr.
Hooper ordered an x-ray, a consult with an orthopedic hand
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specialist, and pain medicine. The requested x-ray occurred
on March 22, 2002. Dr. Ronald Hetrick reviewed the x-ray
and found:
[t]here is a deformity of the proximal end of the
metacarpal to the thumb which appears well-healed.
There is an osteophyte present. This represents an
old fracture with secondary osteoarthritis . . . There
is no evidence for an acute fracture or dislocation,
but there is also a deformity of the distal end of the
second metacarpal consistent with a previous old
healed fracture.
On April 9, 2002, a physician — not Dr. Penner — submit-
ted an “urgent” Request for Services for outpatient “hand
ortho surgeon.” On April 29, 2002, Dr. Fong, an orthopedic
specialist in Manteca, California, examined Mr. Jett’s hand.
Dr. Fong determined Mr. Jett should be referred to a hand
specialist because the fracture had healed improperly.
Mr. Jett was next seen by Dr. Penner on August 20, 2002,
with two subsequent visits on October 7, 2002, and November
12, 2002. On each of these occasions, Dr. Penner noted that
a hand specialist consultation was pending.
On December 4, 2002, Mr. Jett was transferred to Pleasant
Valley State Prison where he continued to take steps to obtain
treatment for his hand. Ultimately, on May 30, 2003, — more
than a year after Dr. Fong, the orthopedic specialist, recom-
mended Mr. Jett be referred to a hand specialist and more than
nineteen months since the injury to his hand — Mr. Jett was
seen by Dr. Jeffrey L. Tanji at U.C. Davis Medical Center.
Based on the current record, it is unclear what treatment Dr.
Tanji provided; however, Dr. Tanji’s letter to a doctor at
Pleasant Valley State Prison following the May 30, 2003,
appointment reflects Dr. Tanji planned to discuss pin place-
ment with Mr. Jett to help repair the “quite . . . bad fracture.”
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Mr. Jett initiated this action pro se on September 17, 2002,
seeking damages for pain and suffering and the continuing
diminished use of his hand. He alleged causes of action under
the Eighth Amendment and California Government Code
§ 845.6. Without holding a scheduling conference or obtain-
ing information from the parties, the magistrate issued sched-
uling and discovery orders. Defendants filed a dispositive
motion, and on January 16, 2004, the magistrate issued “Find-
ings and Recommendations,” recommending the district court
grant summary judgment to Defendants on all of Mr. Jett’s
causes of action. The district court adopted the magistrate
judge’s recommendations in full and granted summary judg-
ment in Defendants’ favor on March 30, 2004. Mr. Jett timely
appealed, and the Ninth Circuit appointed counsel for Mr.
Jett.
We review de novo the district court’s summary judgment
ruling. See Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.
2002); Devereaux v. Abbey, 263 F.3d 1070 1074 (9th Cir.
2001) (en banc).
II. ANALYSIS
42 U.S.C. § 1983: Eighth Amendment
[1] Under 42 U.S.C. § 1983, to maintain an Eighth Amend-
ment claim based on prison medical treatment, an inmate
must show “deliberate indifference to serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976). In the Ninth Cir-
cuit, the test for deliberate indifference consists of two parts.
McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled
on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d
1133 (9th Cir. 1997) (en banc). 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.’ ” Id.
at 1059 (citing Estelle, 429 U.S. at 104). Second, the plaintiff
must show the defendant’s response to the need was deliber-
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ately indifferent. Id. at 1060. This second prong — defen-
dant’s response to the need was deliberately indifferent — is
satisfied by 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. Id. Indifference “may appear when
prison officials deny, delay or intentionally interfere with
medical treatment, or it may be shown by the way in which
prison physicians provide medical care.” Id. at 1059 (quoting
Hutchinson v. United States, 838 F.3d 390, 392 (9th Cir.
1988)). Yet, an “inadvertent [or negligent] failure to provide
adequate medical care” alone does not state a claim under
§ 1983. Id. (citing Estelle, 429 U.S. at 105). A prisoner need
not show his harm was substantial; however, such would pro-
vide additional support for the inmate’s claim that the defen-
dant was deliberately indifferent to his needs. Id. at 1060. If
the harm is an “isolated exception” to the defendant’s “overall
treatment of the prisoner [it] ordinarily militates against a
finding of deliberate indifference.” Id. (citations omitted).
Mr. Jett argues the district court erred by adopting the mag-
istrate’s Findings and Recommendations because he presented
sufficient evidence to establish Defendants were deliberately
indifferent to his need to have his fractured thumb set and cast.1
We agree with Mr. Jett; therefore we reverse and remand for
trial.
A. Dr. Penner
The magistrate’s Findings and Recommendations con-
cluded Mr. Jett failed to present sufficient evidence to estab-
lish a genuine issue of material fact as to whether Dr. Penner
was deliberately indifferent to Mr. Jett’s fractured thumb. The
magistrate concluded there was no evidence showing Dr. Pen-
ner was aware of Mr. Jett’s request to see an orthopedic sur-
geon until the examination on December 24, 2001, and the
evidence showed Dr. Penner’s care on December 24, 2001,
1It is undisputed Mr. Jett’s fractured thumb was a serious medical need.
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and onward was not deliberately indifferent to Mr. Jett’s frac-
tured thumb because Dr. Penner ordered x-rays, prescribed
pain medicine, continued to see Mr. Jett, and ultimately
ordered an orthopedic consultation. We disagree with these
conclusions because the submitted evidence viewed in its
entirety in a light most favorable to Mr. Jett is sufficient to
demonstrate triable issues of fact as to (1) when Dr. Penner
knew of Mr. Jett’s injury and (2) whether Dr. Penner’s care
was deliberately indifferent to Mr. Jett’s medical need to have
his fractured thumb set and cast. See Hutchinson, 838 F.2d at
393.
[2] First, as to whether Dr. Penner knew of Mr. Jett’s frac-
tured thumb and his need to see an orthopedic doctor prior to
December 24, 2001, there is evidence the aftercare instruc-
tions were in Mr. Jett’s medical file, he sent medical slips, he
filed a medical grievance on December 11, 2001, and he sent
a letter via institutional mail to Dr. Penner on December 8,
2001, describing his need to see an orthopedic doctor to set
and cast his fractured right thumb. Dr. Penner denied being
aware of Mr. Jett’s fractured thumb until December 24, 2001;
however, viewing the facts in Mr. Jett’s favor, it must be pre-
sumed that Dr. Penner received the December 8, 2001, letter
in a timely fashion. See Moore v. Jackson, 123 F.3d 1082,
1087 (8th Cir. 1997) (“Whether the defendant actually
received plaintiff’s letter requesting dental care in August
1994, [sic] is a question of fact . . . .”). As the party opposing
the motion for summary judgment, Mr. Jett is entitled to an
inference that Dr. Penner was aware of the filed grievance,
medical slips, and aftercare instructions in his medical record.
Accordingly, the trier of fact could find, prior to December
24, 2001, Dr. Penner was aware of Mr. Jett’s need for after-
care for his fractured thumb and that Dr. Penner’s failure to
see Mr. Jett to ensure the fracture was set and cast was delib-
erate indifference to a serious medical condition.
[3] Second, we find the evidence, when viewed in Mr.
Jett’s favor, demonstrates the existence of a genuine issue of
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material fact as to whether Dr. Penner’s post-December 24,
2001, conduct constituted deliberate indifference to Mr. Jett’s
serious medical condition. At his deposition, Mr. Jett stated
that Dr. Penner advised him at the initial visit on December
24, 2001, “don’t worry about it, we got it all tooken [sic] care
of, we know that you have to go back out [to Mercy Hospital
emergency for a follow-up].” Yet, Mr. Jett was never taken to
Mercy and did not see an orthopedist until April 2002,
approximately six months after the injury. In response to an
interrogatory, Dr. Penner stated that Mr. Jett was not returned
to Mercy Hospital for a follow-up visit because CSP-
Sacramento generally sends patients to Manteca, its con-
tracted facility. This response neither explains nor excuses the
fact that Mr. Jett was not taken to an orthopedist at a con-
tracted facility prior to April 2002. In addition, “the State’s
responsibility to provide inmates with medical care ordinarily
does not conflict with competing administrative concerns.”
McGucken, 974 F.2d at 1060 (quoting Hudson v. McMillian,
503 U.S. 1, 6 (1992)). Accordingly, if Dr. Penner decided not
to request an orthopedic consultation merely because Mr. Jett
could not go back to Mercy, a non-contracted facility, this is
“akin to cases finding deliberate indifference where prison
officials and doctors deliberately ignore[ ] the express orders
of a prisoner’s prior physician for reasons unrelated to the
medical needs of the prisoner.” Hamilton v. Endell, 981 F.2d
1062, 1066-67 (9th Cir. 1992) (citations omitted), abrogated
in part on other grounds by Estate of Ford v. Ramirez-
Palmer, 301 F.3d 1043, 1045 (9th Cir. 2002); Hartsfield v.
Colburn, 371 F.3d 454 (8th Cir. 2004). Mr. Jett presented suf-
ficient information for this question to go to the finder of fact.
[4] Other evidence viewed in Mr. Jett’s favor indicating
deliberate indifference to Mr. Jett’s need to have his fractured
thumb set and cast consists of Mr. Jett’s continued submission
of medical slips to obtain such care and Dr. Penner’s decision
to submit a “routine” request for an orthopedic consult
approximately two-and-a-half months after his initial visit
with Mr. Jett and approximately one month after Dr. Penner’s
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form was filled out. The fact finder could infer deliberate
indifference from Dr. Penner’s act of striking out the word
“obvious,” resulting in a statement of “no malalignment” in
his notes, after reviewing a radiology report which specifi-
cally indicates a deformity.2 See, e.g., Hathway v. Couglin, 37
F.3d 63, 68 (2d Cir. 1994) (finding “[a] jury could infer delib-
erate indifference from the fact that [the doctor] knew the
extent of [the inmate’s] pain, knew that the course of treat-
ment was largely ineffective, and declined to do anything
more to attempt to improve [the inmate’s] situation”). In our
view, this is not a case involving differing medical opinions
regarding treatment methods, see Jackson v. McIntosh, 90
F.3d 330, 332 (9th Cir. 1996), because Dr. Penner recognized,
as did all other physicians who saw Mr. Jett, Mr. Jett needed
to see an orthopedist, as evidenced by Dr. Penner’s March
2002 request for an orthopedic consult for Mr. Jett.
[5] Finally, the record is replete with evidence showing the
delay was harmful. Dr. Penner’s own notes indicate the harm
caused by the delay. Dr. Penner’s December 24, 2001, notes
state that Mr. Jett’s thumb is still “healing;” whereas, his
March 2002 notes state that Mr. Jett’s thumb is “healed.” Dr.
Nicks’ radiology summary for the December 27, 2001, x-ray
states, “healing is underway,” and the summary for the Febru-
ary 14, 2002, x-ray states the “fracture is well-healed.” The
radiology summaries clearly indicate, because the fracture did
not align upon healing, the thumb was deformed; this defor-
mity was inferentially caused by the delay in referring him to
an orthopedist who could have properly set and cast his frac-
tured thumb.
[6] Thus, we conclude Mr. Jett presented sufficient evi-
dence to have the finder of fact decide when Dr. Penner knew
of Mr. Jett’s fractured thumb and his need to have it set and
2In pertinent part, Dr. Penner’s January 2, 2002, notes state, “I reviewed
xrays which showed no obvious fracture malalignment.” (alteration in
original).
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cast and whether the care provided by Dr. Penner constituted
deliberate indifference to Mr. Jett’s serious medical need.
B. Dr. Peterson and Warden Pliler
[7] We conclude the magistrate incorrectly determined Mr.
Jett did not present sufficient evidence to establish the exis-
tence of a genuine issue of material fact as to whether Dr.
Peterson and Warden Pliler were deliberately indifferent to
Mr. Jett’s need to have his thumb set and cast. As prison
administrators, Dr. Peterson and Cheryl Pliler are liable for
deliberate indifference when they knowingly fail to respond
to an inmate’s requests for help. See Estelle, 429 U.S. at 104;
Greeno v. Daley, 414 F.3d 645, 652-53 (7th Cir. 2005). In
answers to interrogatories, both individuals advised that they
were not aware of Mr. Jett’s condition until the lawsuit. How-
ever, Mr. Jett is entitled to an inference at the summary judg-
ment stage that Dr. Peterson and Warden Pliler received the
letters he swore he sent to them. See Moore, 123 F.3d at 1087
(finding a triable issue of fact existed as to whether the
administrator of the correctional facility received the letter
sent by the inmate, which the administrator denied receiving).
California Government Code § 845.6
[8] California Government Code § 845.6 provides, in rele-
vant part:
Neither a public entity nor a public employee is lia-
ble for injury proximately caused by the failure of
the employee to furnish or obtain medical care for a
prisoner in his custody; but, . . . a public employee
. . . is liable if the employee knows or has reason to
know that the prisoner is in need of immediate medi-
cal care and he fails to take reasonable action to
summon such medical care.
(emphasis added). In order to state a claim under § 845.6, a
prisoner must establish three elements: (1) the public
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employee knew or had reason to know of the need (2) for
immediate medical care, and (3) failed to reasonably summon
such care. Id. “Liability under section 845.6 is limited to seri-
ous and obvious medical conditions requiring immediate
care.” Watson v. California, 26 Cal. Rptr. 2d 262, 265 (Ct.
App. 1993). This section does not impose a duty to monitor
the quality of care provided. Id. at 843.
[9] The magistrate determined Mr. Jett’s § 845.6 cause of
action was centered on the adequacy of the treatment pro-
vided. We disagree. While Mr. Jett was taken to a hospital
where his condition was diagnosed, a triable issue of fact
exists as to whether Mr. Jett received immediate medical care
for his diagnosed fractured thumb because the fracture was
not set and placed in a cast. The meaning of a Californian
statute is not determined from a single word or sentence but
is construed in context and given a reasonable construction
while the words of the statute are given their plain meaning.
Diamond Multimedia Sys., Inc. v. Super. Ct., 968 P.2d 539,
546 (Cal. 1999). We hold the term “immediate medical care”
as used in the statute includes both diagnosis and treatment
and therefore conclude the need for “immediate medical care”
can arise more than once in relation to an ongoing serious
medical condition. Without such an interpretation, § 845.6
would create the cruel illusion that a prisoner would receive
both diagnosis and treatment for a serious medical condition.
In our view, the California Legislature did not intend such an
illusion when it enacted § 845.6, and we will not allow it to
be the result. Additionally, if the California Legislature
intended the duty of summoning immediate medical care to
be limited only to diagnosis or to the first time there was need
for treatment for a serious medical condition, it would have
specified such. No such limitation on the stated statutory duty
to summon immediate medical care is included within
§ 845.6.
[10] Here, Mr. Jett was diagnosed and instructions were
given for treatment: “[m]ust see orthopedic doctor this week
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for recheck appointment.” The need for immediate medical
care — treatment — arose as soon as his swelling subsided
and his fracture could be reduced and a cast applied. Accord-
ingly, Defendants violated § 845.6 if they had knowledge of
Mr. Jett’s need for immediate medical care to set and cast his
fracture and did not summon such care. Mr. Jett provided suf-
ficient evidence to support a finding that Defendants knew of
his need to have medical care summoned to set and cast his
fracture and they took no steps to summon orthopedic care as
Dr. Johnson’s aftercare instructions directed. The fact finder
should determine whether a violation of § 845.6 occurred.3
III. CONCLUSION
Because the deadline for filing dispositive motions had
expired by the time the district court entered its summary
judgment ruling and because we conclude Mr. Jett presented
sufficient evidence to demonstrate the existence of triable
issues of fact in connection with both his deliberate indiffer-
ence cause of action and his California Government Code
§ 845.6 cause of action, we do not address whether the magis-
trate’s discovery and scheduling orders effectively prevented
Mr. Jett from gathering evidence to oppose Defendants’ dis-
positive motion. Accordingly, the district court’s summary
judgment ruling is reversed, and the case is remanded for fur-
ther proceedings consistent with this opinion.
REVERSED and REMANDED.
3The issue of the adequacy of the care that Mr. Jett received is immate-
rial to the issue of whether § 845.6 was violated by the delay between the
diagnosis of the fracture and the treatment for the fracture.
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