David Poe Wood v. Vernon G. Housewright, George Sumner

district court also failed to address a

change designation in the racial of one of Department’s longtime employees from black, altering Depart-

Caucasian to previous hiring

ment’s record white splicers throughout history.

cable its Al-

though employee testified at trial that incorrect, designation

his initial racial timing change after Nor- —soon

ris filed complaint certainly his EEO rais- — questions es some regarding the motiva-

tions for change.

Given the lack of specificity the dis- findings,

trict court’s we are unable to de-

termine what facts it found and whether it properly applied

has the law. We vacate judgment and remand to the district findings

court to make clear in accordance 52(a), Fed.R.Civ.P.,

with Rule which ad-

dress the factual relevant issues and re-

spond appropriate to the proof order of

Title VII cases as laid out in McDonnell

Douglas and Burdine. vacated;

Judgment case remanded. WOOD, Plaintiff-Appellant,

David Poe HOUSEWRIGHT, George

Vernon G.

Sumner, Defendants-Appellees.

No. 87-2519.

United Appeals, States Court of

Ninth Circuit.

Argued and Submitted Oct. 1989.

Decided Nev., defendants-ap-

vada, City, Carson pellees. HUG, and FARRIS

Before REINHARDT, Judges. Circuit FARRIS, Judge: Circuit Wood, at the Neva- an inmate Poe David Housewright, sued Vernon Prison da State Depart- State the Nevada Director of Sumner, Prisons, George and ment Prison, in the State Nevada Warden Dis- for the District Court States United in- damages seeking and trict 42 U.S.C. relief under junctive § lia- the defendants alleged that Wood by the 1) indifference for: ble 2) needs, and to medical prison staff access to meaningful him denying pursue this action. in his effort courts favor of ruled in court The district affirm. We defendants.

FACTS Treatment I. Medical he before January, early two months Prison, State the Nevada admitted jailhouse in a injured his shoulder Wood repaired the Vegas physician A Las fight. in Wood’s inserting pins two damage prescribed He also shoulder. prevent the arm Wood’s immobilize dislodged. coming from pins State the Nevada March On inmate. a new admitted Wood guard protests, Ignoring Wood’s sling be- confiscated admitting Wood security abe 1) it to he believed cause access to 2) did threat its medical prove file to few next necessity. Sometime his shoulder pins one of broke Wood pain. experience began inju- complained immediately Young, Braun, Douglas R. Jen- I. Jerome several physician ry saw Martel, Farella, Schwartz, & Braun nifer an anti- prescribed doctor days later. The Francisco, Cal., plaintiff-appellant. San medication pain-killing inflammatory and an referred to beWood and recommended Gen., Waldo DeCas- McKay, Atty. Brian No further specialist. orthopedic Gen., outside of Ne- troverde, Atty. Deputy taken, difficulty conducting Wood’s medical about his research because action was prison. not at the until the eve of his trial. records were still March 1983 Wood was moved On ANALYSIS hearings in his crim- Vegas to Las

back prison He returned to the inal conviction. Eighth I. The Amendment Claim 14, day that same he April on 1983 and complaint An inmate’s of inade prison authorities about the complained to quate medical care amounts to a constitu Two later Wood pain in his shoulder. alleges if tional violation the inmate “acts Sumner and Ver- wrote a letter to Warden sufficiently or omissions harmful to evi requesting assistance in Housewright, non dence deliberate indifference to serious 22, expediting medical treatment. On Gamble, medical needs.” Estelle v. 429 prison physician again. 1983 Wood saw 106, 285, 292, 97, U.S. 97 S.Ct. 50 L.Ed.2d x-rays, pre- took additional doctor (1976); McCarthy, 251 801 Toussaint v. again more medication and referred scribed 1080, (9th Cir.1986), denied, F.2d 1111 cert. orthopedic specialist. Wood to an outside 481 U.S. 107 S.Ct. 95 L.Ed.2d signed Wood a medical release form at that (1987). determining 871 In indif 4, 1983, Finally, May time. on Wood saw ference, particular scrutinize the facts we orthopedic specialist, who removed the and look for substantial indifference in the floating pin. case, indicating individual more than mere negligence or isolated occurrences of ne II. Access to the Courts glect. Toussaint, 801 F.2d at 1111. Pris deliberately are indifferent to a on officials working bring- started 1984 Wood prisoner’s serious medical needs when pro this se. At that time he lawsuit “deny, delay intentionally interfere with seg- was incarcerated in the administrative medical treatment.” Hutchinson v. Unit regation prison unit of the and so had States, (9th Cir.1988). ed 838 F.2d 394 limited access to law books. Wood had to that, agree We with the district court while clerks, rely only who on inmate law had prison official’s treatment of Wood training, limited education obtain negligent, have been it did not rise to the requested prison law books from the li- level of deliberate indifference. brary. September when Until 1985 prison upgraded, library system was strongest claim is that the training. law clerks had little formal This prison provide officials failed to the in system supple- of inmate law clerks was mate’s medical records when he arrived at by monthly library mented visits of the Nevada Prison. This failure caused State supervisor to each unit. Wood did success- sling, confiscation of Wood’s fully system legal use re- conduct complains turn caused the harm Wood of. li- search. In March 1986 satellite law conduct, though apparently inexcusa units, put segregation braries were ble, does not amount to deliberate indiffer library but the in Wood’s unit was located poor ence. While medical treatment will supply cabinet to which had point a certain rise to the level of constitu limited access. violation, malpractice, tional mere or even gross negligence, 1984 Wood wrote letters does not suffice. Al

On October Housewright complaining though to Sumner and Wood’s treatment was not might inability legal help. prompt about his to obtain or efficient as a free citizen receive, subsequently hope given Wood made numerous other Wood was Sumner, protests Housewright and other care at the that addressed his needs. regarding legal F.2d City Imperial, officials the lack of 884 Ortiz Cf. Cir.1989) (deliberate responded assistance. to Wood’s 1312 indifference complaints police prisoner’s con and directed his assistants to found where knew compe legal totally failed to treat it proper ensure that Wood received dition and complain tently). assistance. Wood continued delay in treatment Wood himself admitted that he could and does the

Nor eighth get supplies did the books and he needed to constitute an Wood suffered research, violation; delay complete must have basic and that he re amendment Shapley v. assistance from harm. See ceived other inmates caused substantial Com’rs, preparing legal Bd. materials. Wood’s suc (9th Cir.1985). Given the naturally cess limited due to lack F.2d legal education, treat of his condition of a but circuit’s seriousness “[t]his actually received such harm ment decisions have reflected our belief that the here. Wood’s condition present requires Constitution certain minimum not met; require require emergency attention. did not standards does Cf. Laboratories, optimal 622 Broughton maximum or the level of ac- v. Cutter even cess_ (9th Cir.1980) 458, (delay of six F.2d 460 Constitution does not re [T]he treating may economic, constitute hepatitis quire in the elimination of all intel indifference). lectual, delay technological litiga Nor did the to and deliberate barriers treatment, Lewis, 1166, 1169 substantially con harm Wood’s tion.” Sands v. 886 F.2d Cir.1989). (9th only remedy immediately the sidering that painkillers. prescription for available was inmates can not show denial Where 865 F.2d Department, v. Hunt Dental Cf. adequate adequate libraries or as law 198, Cir.1989) (three delay month 199 law, in persons sistance from trained the dentures, gum disease replacing causing in they by showing may still “actual succeed eighth weight possibly loss constituted (confis 1192 injury” to court access. Id. at violation). amendment paper typewriter did cation of carbon injury). Again, not actual constitute II. Amendment Claim The Sixth not Wood’s claim fails. Wood has shown Smith, 430 U.S. Bounds v. charges that defendants or their interfered 52 L.Ed.2d 72 97 S.Ct. bring only in his efforts this case. The to (1977), right to the of inmates established is allegation type of this that on one occa through “meaningful” access to the courts guards took from sion a book “adequate adequate assist law libraries library it to the so Wood’scell and returned persons trained in law.” ance from use This action other inmates could it. determining this constitutional certainly injury did constitute actual not breached, has been we “focus on minimum his claim. The pursuit legal plaintiff whether the individual before [us] findings that Wood was district court’s meaningful King has denied access.” been prejudiced in seek redress his efforts to (9th Cir.1987) Atiyeh, 568 v. 814 F.2d supported by the record. legal his claims is omitted). (citation support the district prior Our decisions Right III. Claim Counsel system finding of satellite court’s 1915(d) provides that 28 U.S.C. § provid- and inmate law clerks law libraries may appoint counsel district court adequate. constitutionally ed to Wood was litigants. The district court indigent civil system at the Nevada State That appoint counsel for Wood. refused to we constitu- very similar to the one found an abuse of discretion. decision was not Lindquist tional in v. Idaho State Bd. of in ex- (9th Cir.1985) appointed should Corrs., F.2d at 854 Counsel 776 851 circumstances, on such ceptional based supplemented inmate law clerks (library on the courts). of success likelihood provides meaningful access to factors plaintiff to ability of the library and the to the was merits Although Wood’s access com- light of their special his claims conditions of articulate limited because of Escalderon, F.2d confinement, plexity. held that offi- Wilborn we have (9th Cir.1986). The instances library at 1331 regulate use of the cials presence claims indicate facility. that Wood security ensure Id. any liti- factors difficulties these are se; proceeding pro they gant erately would have indifferent to the medical needs of exceptional simply do not indicate factors. because failed to have anticipated delay problem adopted AFFIRMED. regulations procuring more definitive quickly. medical records more HUG, Judge, concurring: Circuit I concur in the Judge remainder of Far- affirming judg- I separately write opinion affirming ris’ and thus concur in I ment of the district court because differ judgment. analysis Eighth Judge Farris’ I Amendment claim. conclude that the con- REINHARDT, Judge, Circuit long and the fiscation of the Dissenting part: delay in treatment unjustified remove pin did amount broken agree I prove that Wood failed to discussed in Rein- indifference as trial, claims under the sixth amendment at However, agree I hardt’s dissent. to af- judge and also that the district did not firm an because find insufficient basis to refusing appoint abuse his discretion in impose personal liability Housewright, However, counsel for him.1 I strongly dis- as the Director of the Nevada State De- agree Judge with Farris’s conclusion that Prisons, partment Sumner, as the eighth inju- suffered no amendment Warden Prison. ry. The sling confiscation of his and the findings delay providing The of the district court indicate inordinate in essential in, personal clearly that there was no involvement medical care constituted “deliberate of, indifference,” knowledge the confiscation of the and his resultant delay or the in treatment. suffering clearly meet the standard set against poli- Gamble, 97, testified that it was forth in Estelle v. 429 U.S. 97 medically 285, cy necessary equip- (1976).2 to confiscate S.Ct. 50 L.Ed.2d 251 ment. The dissent contends the fail- (and Hug While and I thus the guidelines ure to establish more exact to panel majority) agreement are in on this implement policy was deliberate indif- issue, respectfully fundamental I must dis- part ference on the of Sumner and House- agree with his conclusion that there is no wright. explicit guidelines may More well need for the district court to reconsider its prevented have this unfortunate exercise of determination that the two individual de- judgment part guard, on the of the but I legal respon- fendants bear no share of the categorize explicit cannot the lack of more sibility for the constitutional violation. The guidelines rising to the level an holding district court's that neither House- Eighth Amendment violation within the wright personally respon- nor Sumner was meaning Gamble, 97, of Estelle v. 429 U.S. sible for those can- constitutional violations (1976). 97 S.Ct. 50 L.Ed.2d 251 not be improp- sustained because the court

Similarly, may erly analyzed it be desirable to have the nature of the defendants’ regulations concerning law, more definitive duties under Nevada and thus failed to acquisition specific of medical records so as to consider the acts or omissions possible delay avoid in treatment involved. which render the defendants liable under However, I my opinion, cannot conclude that House- section In Nevada law wright personally required and Sumner were poli- delib- the defendants to establish however, circumstances, point, my agreement give 1. On the latter able to it. Under the stems from the fact that we review the preferable appoint would have been counsel district court’s decision for abuse of discretion. stage, at that if not sooner. by At least the time the district court denied the summary judgment, defendants’ motion for by 2. The facts found the district court demon- eighth court should have realized that Wood’s beyond question strate that Wood’s constitution- amendment claim had substantial merit. In rights acting by persons al were violated under importance many people view of its other law; contrary color of state its conclusion is penal system, affected the Nevada that claim plainly in error. (who presentation deserved better than Wood well) performed surprisingly nonetheless

1337 in Wood’s claim not that the case. designed to ensure des and provided inadequate personnel admissions are avail- medical records inmate’s that an they confiscated treatment when policies shortly after able arrival — confiscating it is rather that sling; which, and followed properly established if previously sling, case, prevented the con- would in this interfered treatment that was con- prescribed medical proven by alleged and violations stitutional adequate. negligence cededly Professional and re- reverse therefore I would Wood. claim. nothing has to do with this deter- court could district mand so that the House- first instance mine Eyman, 434 F.2d 625 Tolbert v. discharged properly wright Cir.1970), approval by and Sumner the Su cited with Estelle, responsibilities. at 105 n. legal preme U.S. their Court 429 S.Ct, explains the na at 291 n. plain terms. my colleague’s error ture of INDIFFERENCE DELIBERATE I. Tolbert, alleged medi prisoner eighth and fourteenth By virtue prison physicians prescribed cation Constitution, our amendments (but prison at the provided from outside the provide “obligation to an government has by pris expense) intercepted prisoner’s punishing it is those whom medical care for four times returned authorities Gamble, 429 Estelle by incarceration.” “security reasons.” the sender 285, 290, L.Ed.2d 97 S.Ct. U.S. attempted to charac there also defendants that ob- (1976). officials violate merely negligent claim as one of terize the in- they manifest “deliberate ligation when treatment, noted that the Tolbert but court pris- medical needs to serious difference oners_ argument “com malpractice” the “mere the indif- is true whether com the thrust of Tolbert’s pletely misses in by prison doctors is ference manifested as defendant not plaint, names prisoner’s needs or response their to doctors, gravamen of the warden. The but denying intentionally guards in ;prison erroneously not that he his claim is care or in- to medical delaying access doctor, but that diagnosed by prison treat- with the tentionally interfering him authorized refused to allow warden 104-05, 97 at prescribed.” Id. ment once prevent serious he needed to medicine added; footnotes (emphasis at 291-92 S.Ct. F.2d at 626. health.” 434 See harm to his v. United omitted). Hutchinson See also Prison Nevada Bd. Shapley v. also of Cir.1988). (9th States, 394 F.2d 838 (9th Cir.1985); Comm’rs, 408 766 F.2d consti- view that no Judge Farris is of the Beto, 765 Cir. 460 F.2d Campbell v. I, like occurred. tutional violation as 1972) prisoner (allegation my opinion, disagree. In Hug, respectfully than more strenuous detail signed to work of three distinct instances has shown Wood admitted, held classification his medical in- distinct conduct—three unconstitutional under of action state a cause sufficient to to his indifference of deliberate stances Mancusi, 443 1983); v. Martinez section pain in that resulted medical needs serious Cir.1970) (allegation that (2d F.2d 921 under suffering cognizable Estelle. public hospi from prisoner guards removed walk him to discharge, forced tal without Sling of A. Confiscation deprived leg surgery, after and stand medication, Wood in violation who admitted all him of prison officials (“NSP”) orders, to state a sufficient held surgeons’ the Nevada State 1983), cert. intentionally under section interfered cause action 1983 March 28 denied, 91 S.Ct. treat- medically prescribed 401 U.S. with Wood’s Evans, (1971); 544 sling. 335 Jones L.Ed.2d they confiscated his ment when (confiscation of (N.D.Ga.1982) F.Supp. charac- this fact recites Judge Farris might brace claim,” medically prescribed back but a strongest terizes it “Wood’s even indifference medical constitute a discussion proceeds generally attentive were where defendants so, respectfully doing In malpractice. needs). plaintiff’s issue principal a misperceives he suggest, in necessary. indifference This behavior was both deliber- In order to find deliberate sling, one need not the confiscation of ate and indifferent to Wood’s serious medi- addition, court did when it go as far as the Jones cal needs. Wood claimed that employee’s inter- opined that a nonmedical prison he made several efforts to have the “can almost prescribed care sling, return the authorities to no avail. ference than delib- never be characterized as other Although the district court made no find- F.Supp. at 775. erate and indifferent.” ings regarding postconfiscation Wood’s ef- justifi- say it to that the burden Suffice forts, alleged conduct of the authorities treat- interfering cation with medical failing sling, to return the without mak- than for logically ment must be heavier ing any inquiries person- failing provide such treatment nel, would, of course—for the same rea- instance, fairly simple reasons. first indifference. sons—constitute deliberate and limited While the crowded conditions prisons unfortunately re- resources in most Delay B. in Medical Treatment in a of care somewhat lower sult standard days Within a few after the confiscation society large, prevails than that which sling, pin Wood’s shoulder usually requires sophisticated neither fa- might reasonably broke—as have been an- a cilities nor additional resources allow ticipated.3 promptly notified prisoner to continue with a course of treat- sought that he was in officials already receiving. Certainly, in ment he is help, but was not seen practical the absence of the limitations that 22, 1983, physician days until March eleven customarily poor are offered excuse and, sling after the was confiscated accord- care, health nonmedical defendants who court, “anywhere to the district from a steps take affirmative to interfere with complaints week to ten after his only possible, treatment that is not but McLennan, physician made known.” Dr. actually occurring, heavy must assume a working at under NSP contract with justification. burden of State, X-rays took of Wood’s shoulder and That burden was not met here. Wood correctly diagnosed problem, noting admitting informed official piece pin that a of the broken was “float- medically necessary. was Admissions ing” in shoulder. Dr. McLennan Wood’s personnel could not look at Wood’s medical recommended that Wood be Dr. seen records because those records had not been Schnaser, orthopedic specialist. an outside admitting transferred with Wood. The of- However, Wood was not taken to Dr. pris- ficial could have referred Wood to the 4,May fifty-four days until some Schnaser hospital, medical where a examination initial confiscation and for- after the some X-rays easily or could have confirmed the Dr. ty-three days after McLennan deter- presence pins of the and the concomitant required condition treat- mined Wood’s sling; presumably, need for the the official by specialist. ment a Once Wood was tak- prison could also have consulted with a Schnaser, “floating” pin en to Dr. was deciding medical assistant before what to surgically day. removed that same However, any do. without benefit records, Wood contends that these facts show a referring medical Wood to without delay in treatment so unreasonable as to prison physician a for a determination of fact, constitute an instance of deliberate indif- his needs—in without kind, ference that is distinct from the confisca- any admitting consultation of offi- defense, however, sling. tion of the The cial made conscious decision confiscate sling medically possible it excuses for the de- whether or not was advanced two prison 3. The record does not disclose the exact date of informed officials at the time his pins injury, appellees dispute in his but the do not was confiscated that he had steel “[sjometime suggestion before Wood's that it occurred shoulder that would need to be removed Thus, days,” next and the district court he could move his arm. Wood made few prison attention known to found that Wood was in "almost immedi- need for medical ately” prison his admission to the after his arrival at the on March officials at the time of Moreover, prison. also testified that he Wood that he from a broken metal shaft in his shoulder First, testified Dr. McLennan lay. he first repaired treat Wood when would wait a week to have it unable to Next, medical records why Wood’s it saw him because removed. is not at all clear court in his file. The district not authorities not the NSP could have ar- the need for medical apparently believed ranged orthopedic spe- for Wood to see an noting, “No delay, excused records possibly surgeon even the who in- cialist— serted the prisoner would be newly received doubt a pins during the two weeks he — and set- period processing subject to a County jail.6 spent at the Clark emergency or life other than tling before event, any the more fundamental could threatening complaints be health problem with the tendered excuse is that However, this observation to.” attended physical from the Wood’s absence delay nearly for the to account fails possibly thought cannot sufficient rea- the maximum here. Whatever eight weeks delay son for the authorities to ar- pro- “period of a duration reasonable Dr. ranging Wood’s visit to Sehnaser. for be, it must be settling in” cessing and if the treated Even State need not have days.4 fifty-four than substantially fewer prior certainly to March should Wood by the defen- second excuse offered arranged immediately for treatment eight- spent some of is that Wood dants Instead, upon his return. it waited anoth- The district outside NSP. period week eight days after his return before send- er 30, 1983, March judge found that on again, Dr. ing Wood to McLennan County from NSP to the Clark was taken with a form for the release furnished Wood hearings in connection with jail for records, then waited of his medical conviction, and that criminal taking Wood to days twelve more before “Practical- until 1983.5 returned Surely, Dr. even if the State Sehnaser. asserted, “treatment had to court ly,” the arrange treat- gets “a week or so” to he could be his return to NSP where await ment, get fresh “week or so” it does not by Dr. Sehnaser.” seen every step way. However, absence also this two-week offers a different rationale Farris delay, for several rea- fails to excuse the rejecting argument. He cites matter, it is not at preliminary As a sons. Board Shapley v. Nevada relevant, for that the absence is all clear Commissioners, 766 F.2d Cir. obligated to may well have been the State 1985), delay in proposition that a 30 re- his March treat Wood even before it causes is not actionable unless treatment all, That, days after was nineteen moval. appears He to take harm. substantial (ample “process- time for his arrival after needs were position that Wood’s medical in”) settling eight after enough give rise to a viola not serious diagnosis. The district Dr. McLennan’s eighth amend rights under the tion of his say might thought it “fair to that judge injury not threaten did ment because citizen to a week or so for a free take However, any as such his life or health. and see a appointment to make an able There, the by Estelle. sertion is foreclosed specialist to see a family physician ... or eighth the that explicitly stated confident Court Dr. I am less such as Sehnaser.” only to cases applies not private experiencing citizen amendment that a Moreover, surrounding initial of presented insertion with a 6.The facts 4. Wood was not jail previously at the pins release of his medical records until form for the April when Wood was 1983, 22, after his initial one full month usefully after his trans- with the events contrast necessity "period pro- of examination. The that appears from the record It fer to NSP. in," may settling cessing excuse, else it whatever January injury occurred Wood’s initial delay in the cannot excuse unreasonable County jail at the Clark and officials settling processing and in itself. completely, managed needs to attend to Wood’s days. including surgery, eleven within custody 5. Wood remained Prisons, Department than the Clark rather authorities, County this for all but three period. needs, foot-dragging response their lin- medical or a physical ‘torture “actually produce needs, delay Kemmler, evidenced to those death,’ [quoting In re gering complaint and 930, 933, nearly eight weeks between 436, 446, 10 S.Ct. 136 U.S. treatment, any- be characterized as cannot serious (1890)],” also to “less but L.Ed. indif- thing than deliberate wilful may other care cases, of medical denial which] [in no one ference. suffering which pain and result in pur- any penological serve suggests would Medical Records Failure to Obtain C. at Estelle, at 97 S.Ct. 429 U.S. pose." in his pithily noted As Dr. Schnaser already constitutional violations The two pina back to have testimony, hurts contends point to a third. Wood “[I]t discussed pain, while your skin.” through out been records should have his medical that “less cat- serious” undoubtedly in Estelle’s time at the on March transferred enough substantial egory, was nonetheless County from the Clark transferred he was need.7 For medical a serious that, least, NSP; constitute at jail to reasons, that Wood any assertion the same have been transferred records should permanent physi- sort of allege some must agree, and conclude shortly thereafter. equally untenable. damage is too, cal this, indif- constituted deliberate that ference. Moreover, proposition advanced by the au- supported Judge Farris is pro- not to apparently chooses The State Broughton In v. Cutter he cites. thorities prisoners without treatment vide medical Cir.1980), (9th Laboratories, 622 F.2d 458 records, at medical reviewing their six-day delay in the treat- situations, we held nonemergency there least time the during which hepatitis, ment of that course of action. be merit to well might prison hospital, inmate review new prudent for doctors to It seems indifference; surely constitute prescrib- histories before patients’ medical treatment of day delay in the fifty-four possible. How- ing whenever treatment pain and caused more shoulder has ever, requirement, given In by prison concern officials. less showed obtaining of facilitate the obligation to an F.2d 198 Dep’t, 865 v. Dental Hunt records, by en- prisoners’ medical Cir.1989), had lost his den- inmate who an their arrive with suring prisoners alleged prison riot in a tures by making whatever records or medical plac- months waited three before officials reasonably be arrangements can other diet, during which on a soft-food him made, will be available the records so that breaking gums teeth were time his prisoners arrive when the the institution allega- held that his bleeding. We were For, practicable. thereafter as or as soon state a claim under

tions sufficient the State attaches prerequisites whatever pain and involved less 1983. Hunt section care, availability to the delay than Wood suf- only slightly more provide obligation State’s constitutional nor Certainly, neither Hunt fered. Inmates undiminished. that care remains requirement of last- supports a Broughton complaints; are certain to to life or health. ing injury or a threat doctors and why provides that is the State place. The failure in the first au- infirmaries summary, Wood notified prisoners records of 11, request the medical 1983 of his condition March thorities institution until to a new transferring he was admitted. On March when after virtually en- medical attention they need belatedly that he was concluded themselves delayed will be medical care that the sures medical treatment. Once of need for such care need the inevitable when of serious were aware Wood’s authorities par- diagnosis at Sunn, (9th was least that the contention F.2d 982 Wood v. 865 7. See abo There, Wood). correct, finding of Cir.1988) tially affirmed a (involving the court a different indifference, plaintiffs diagnosed noting, com- not the “Whether or doctors deliberate based, psychosomatic, plaints as and determined real.” physically it was Wood’s way was to complaints omitted). with the to deal (footnote best 989 865 F.2d at Although ignore the record sustained them. 1341 who, law, subjected failure reflects under color of state such finally arises. When system him, contains a practice, subjected, or caused him to be the common to the suffering, evi- period of needless deprivation rights. 42 built-in those U.S.C. part on the dencing indifference concluding After 1983. that Wood had § health of the inmates to the of the State violations, proven any not constitutional future medical needs. and to their the district court held as an alternative ground judgment its that neither Deputy Attorney argument, the At oral Housewright charged nor could Sumner be unreason- it would be argued that General liability if with even there were a constitu- pris- to transfer a expect the State able to tional violation. jail along from the records oner’s explain why. failed to although he prisoner, The district court arrived at this alterna- simply can assume that we I do not believe ground considering possible tive after two any argument. the correctness of liability theories of under section 1983: event, could establish a if the State even liability Housewright of Mr. and Mr. transferring medical reason for valid must be found in their actual prisoners, prop- along with its records participation deprivation in the of the much. not advance its cause osition would rights plaintiff constitutional or their explain completely failed to For State encouragement deprivation. of such At medical why it makes no effort to obtain plaintiff a minimum must show that prisoner’s arrival records as soon after directly implicitly these officials or au- Here, necessary medical practicable.8 thorized, approved, knowingly or unreasonably delayed be- treatment aquiesced alleged unconstitutional procedure apparently no cause there was Nevada, conduct. Buckner v. State of obtaining until the need records after F.Supp. (D.Nev.1984); 791 see By making receipt its them arose. F.2d 1252-54 Hoptowit Ray, prerequisite to constitu- medical records a (9th Cir.1982); Gertzen, 676 F.2d Hirst v. (or perhaps tionally required medical care Cir.1982). n. 28 One oth- custody by assuming absolute over simply liability defen- possible er basis for of the may injury), illness or persons who suffer pursued and that is wheth- dants must be obligation to make assumed the the State any specific statute of Nevada er there effort to obtain those at least a reasonable Prison Board regulation time. practicable at the earliest records Department of Prisons] [Nevada any procure effort to The failure to make duty upon either impose would after he suffered a records until them, could the violation of which a third instance injury constituted serious liability. result in indifference.9 of deliberate theory judge rejected the first The district LIABILITY THE II. OF liability he found no credible because DEFENDANTS support allegation that ei- evidence to Housewright knew about ther or Sumner course, must show more than a Of 4,May prior to problems rights; to Wood’s of his constitutional violation fi- medical needs were when Wood’s 1983 he must show prevail under section rejected the second nally met.10 The court Housewright persons and Sumner are necessary to consider is therefore not Wood. It I note that if the State fails to obtain records, own, pursued could policy the State through no of its even fault successfully challenged an inmate who provide be required in some instances to any yet required medical assistance the benefit of had not needed medical care without ques- prison. I do not need to reach the those records. provide tion here whether the failure might 10.Although have been other conclusions notwithstanding the absence of medi- treatment record, limited the the court's drawn from fac- indifference records constituted deliberate cal finding clearly Wood erroneous. is not tual in Wood’s case. Director House- he wrote letters to testified that wright violation, 1983. on and Warden Sumner of its because causal relation letter, (whose two, reviewing Sumner testi- the harm to After other resulted in substantial needs, bearing no on whether the those has the state stat- found that theory because upon perform an act duties defendants failed affirmative imposing utes not, in the legally required perform, do or wheth- Housewright and Sumner were words, absolutely lia- injury, either “make er that failure caused Wood’s court’s [them] pris- in the happens Thus, finding that everything indirectly. directly for or ble health of inmates.” respecting the Housewright nor Sumner that neither not medical needs was knew about Wood’s legal district court’s points, the On both liability. insulate them from sufficient to We have summa- incorrect. analysis was liability under possible bases rized Second, although appears to the court follows: 1983 as section liability upon could rest realized have depri- “subjects” another to person A law, imposed by state a breach of duties right, within constitutional of a vation give sufficiently con- the court failed to 1983, if he does meaning of section duties crete content to the broad which act, participates in anoth- affirmative an imposes upon Housewright Nevada law acts, per- or affirmative omits er’s judge The district mentioned and Sumner. re- legally he is an act which form policy “providing] care only the abstract deprivation that causes the to do quired possible, equivalent, so far as for inmates made_ More- is complaint which in the provided for free citizens to that over, not the personal participation is identify the world.” He failed to outside liability. only predicate section required in specific acts defendants any citizen to be who “causes” Anyone broad, general fulfill their obli- order to depriva- to a constitutional subjected pertinent gations under the Nevada stat- causal requisite liable. is also tion short, the court failed to consider utes. only by not can be established connection by measures taken specific whether the personal participation kind of direct some or adequate two officials by setting deprivation, but also adopt policies proce- failing to certain acts which others motion a series statutory they violated their obli- dures reasonably should actor knows gations. inflict the cause others to would know mind, legal standards proper With injury. constitutional ways Housewright I find two 588 F.2d 743-44 Duffy, Johnson liable Sumner well been added). (9th Cir.1978) Under (emphasis I injuries. discuss Wood’s constitutional standard, analysis the district court’s each turn. respects, at in a number of deficient require reversal. some of which least Policy A. to Establish Failure only two critical deficiencies. mention need Obtaining of Regarding the First, of the law the court’s statement Medical Records liability under erroneous. Personal Director House- Wood contends upon autho- 1983 need not be based section wright Sumner were ultimate- and Warden rization, acquiescence; it is approval, or of his medi- ly responsible for transfer per- “omits to if the defendant sufficient If Wood seeks to hold House- cal records. legally required he an act which form every failure wright and liable deprivation of which that causes the do records, goes theory too to obtain F.2d at 743. complaint is made.” 588 that, Nonetheless, a it is clear needs, far. while Knowledge of Wood’s medical minimum, the two offi- Nevada law makes question of wheth- possibly relevant to the establishing policies or authorized, responsible for approved, or cials er the defendants ensure that designed to in the deliberate indifference acquiesced testimony, through Wood's) later his own nev- dation mony preceded stated he did it, again into the letter evidence. receiving judge er Housewright offered the trial instructed recall because, apparent- testified lay never foundation in that he would need to of Nevada ly, the state he lived outside way could be ad- other before the letter some subpoenaed. lay could not Although foun- Wood did suitable mitted. practicable obtained at the earliest prisoners are obtained date. records of medical Similarly, Housewright promptly. scarcely could be thought “proper to have taken measures to Revised 209.131 of the Nevada Section protect safety health and of ... offend- of affirmative imposes a number Statutes ers in the institutions and facilities of the De- Director of the obligations upon the 209.131(6), pertinent department,” that are Nev.Rev.Stat. of Prisons partment § in is to ... policies procedures The Director here. unless he established “[Receive to offenders sentenced with law accordance designed to ensure that the medical record prison;” imprisonment the state “[b]e prerequisite for care and treatment would custody, supervision, responsible for the Hence, generally be satisfied. these stat- treatment, care, discipline of security and utes leave little doubt that the State del- jurisdiction;” offenders under all egated regarding constitutional duties all ... and enforce regulations “[establish obtaining of medical records to House- custody, care and governing the ... laws wright and Sumner. offenders;” and to training of “[t]ake obviously does not amount to mak- protect the health measures to proper ing “absolutely the warden or the director in the institu- safety ... and offenders everything happens in liable for department.” tions and facilities respect in- prison in to the health of an (1987) (em- 209.131(3)-(6) Nev.Rev.Stat. § mate,” apparently as the district court added). discharge To facilitate the phasis example, Housewright feared. For Director important obligations, the of these hardly appoint a for each institution. could have been blamed is to warden Sumner responsible to the director McLennan, “Each warden is looking if Dr. after here institution, of his for the administration records, negligently medical had policies and including the execution of all arrange failed to for removal of the broken regulations of the of all the enforcement Likewise, if pin. Wood’s records had been custody, care department pertaining to the requested pursuant a constitu- promptly jurisdic- training of offenders under his adequate tionally procedure, but 209.161(3) (1987) tion.” Nev.Rev.Stat. § by Vegas records had been lost the Las Moreover, added). De- (emphasis pins, there physician who inserted the Regu- Prisons Administrative partment of finding that House- no basis for a would be 600(V)(C)(3), by the district cited lation the duties wright had breached or Sumner court, of each institu- charges the warden legisla- delegated by to them the Nevada responsibility for the with “ultimate tion posses- Similarly, if the institution ture. in the institution of the inmates welfare to forward the records refused sion of inmates have insuring and for prison officials prison, them services commensurate the level health ” argu- held liable. But Wood’s could not be contemporary practice with Housewright and Sumner ment here is that added). (emphasis procedures for policies or no established statutory duties encom- general These timely in a fash- obtaining medical records duty policies pass specific establish there- ion, that the two officials by inmates’ medical This does of their duties. fore breach upon transfer or records are obtained absolutely liable not make the defendants the fact that promptly thereafter. Given errors; only makes them for all record treated at NSP without inmates not be establishing and administer- responsible records, and the fact that their medical safeguard constitu- designed policies any pre- treatment can in event best to fulfill rights. If fail tional review, if records are available scribed inju- their failure causes responsibility and the inmates could “insur[e] “setting others, directly byor either ries to commen- the level of health services others,” John- a series of acts motion prac- contemporary surate they are liable to son, F.2d at steps tice,” id., only taking reasonable generally injured. those records are to see that medical thereafter, inmate, shortly or then necessary to ask whether with still It dis- properly that neither the official and Sumner it is curious Housewright The district obligations. their charged Wood on March nor the who admitted nothing was that court concluded April any prior “[t]here time to medical staff policies ‘measures’ deficient deficiency. any steps to correct that took 209.161 director,” “[njeither NRS and that inference is that the absence The obvious 600(V)(C)(3)is a source of nor NDOP AR standard medical records was of Wood's Sumner in part of Warden liability on the procedure.11 If so—and there is operating However, from the appears it this case.” suggest the con- nothing in the record to judge failed that the district court’s order proce- operating the standard trary —then any policies more on his conclusions to base constitutionally unacceptable, and dure is policy of prison’s broad specific than the held Housewright and Sumner should be inmates provide care for “endeavoring] to in- under section 1983 for deliberate liable pro- possible, equivalent, so far medical needs. to Wood’sserious difference in the outside free citizens vided for However, clearly although the evidence laudable, policy is That world.” broad liability, it suggests the defendants’ is for thought course, cannot sufficient be but eighth to evaluate the relevant any searching the district court more to cut off Therefore, lia- analysis. To determine the testimony in the first instance. amendment in this Housewright and Sumner bility proper disposition believe case, have examined the court should and remand for appeal would be to reverse the NSP officials by which procedures record, I proceedings. For the further availability general sought to ensure the encouraged judge district would procedures If no such records. reopen proceedings and allow procedures place place, or if the were in on, testimony additional parties to adduce that new inmates such it foreseeable made things, general proce- among other subjected to indefinite be as Wood would dures, any, by if which medical records are suffering their records while periods of fact, NSP; in for the reasons obtained at obtained, Housewright belatedly then were below, suggested that I would have noted their duties under violated granting a judge consider new the district so, “omi[ssionj their If State law. trial. legally [they perform an act which were] job of Judge Reed did a commendable Johnson, do,” F.2d at required to plaintiff; prop- accommodating proa se the harm sustained omission caused in the com- erly attempted to assist Wood Wood, them liable under section makes neces- developing the evidence plex task claims; I have sary to substantiate strongly suggests that there The record way Judge Reed nothing praise for the but gov- policies in fact no orderly proceed- concern for balanced obtaining prisoners’ erning the the truth be his desire that ings with prison- of the onset of records advance Nonetheless, appears to there reached. suffering. contention injury or er’s question- strong possibility that Wood’s presented with a release that he judge’s by the unduly influenced 1983 is unrefuted form until appreciate the nature of House- failure record, dispute is likewise no and there responsibilities un- wright’s and Sumner’s records concerning the fact that Wood’s result, law, and that as a der Nevada If it obtained at that time. had not been properly devel- may not have been record in- procedure for an standard had been Moreover, record and var- both the oped.12 records to be transferred mate’s medical occasion, awkwardly attempt- supported 12. On one is further 11. This inference something general proce- about ed to discover argument we at oral defendants’ assertion changed by asking had been how dures expect the transfer of would be unreasonable waiting question. Without since the events along prisoners. records asked, is that objection, Reed "How you, looking for is here? What we’re relevant of the defendants’ counsel dures. The failure discharge statements ious re- sponsibility, constitutionally inadequate where it leads to suggest that constitutional here, place injury as it did procedures may support be even now sufficient to liability under NSP, in the section 1983. perhaps and elsewhere system. possibility That is a that question again becomes whether dismissed without further should be Housewright properly and Sumner dis inquiry. charged duty. Again, their I believe the suggests evidence that did not. Offi Policy Regarding B. Failure to Establish Christy cer testified that confiscation was Supplies of Medical the Confiscation left to the “sergeant discretion of the or Equipment and charge whoever was in day.” that Fur thermore, The absence of medical records was not testified, response Sumner injuries; Wood, the sole cause of Wood’s con- questioning by that there were “no substantial, also a procedures” governing fiscation of his was the confiscation of seminal, medically necessary indeed cause of his subse- equipment and when in suffering. quent prison. and Wood contends mates were received into the Cf. 209.131(3) Housewright and must also (requiring that Sumner Nev.Rev.Stat. § responsibility for this instance of de- Director to “receive according bear [offenders] law”). many Although liberate indifference. For of Sumner also testified above, expressed against I that it policy same reasons as those NSP to confiscate agree. medically necessary equipment, nothing in the record Christy’s contradicted Officer earlier, explained official interference As testimony that the determination medi treatment, prescribed medical with necessity cal per was left not to medical strong justification, absence of constitutes sonnel, “sergeant but rather to the or who deliberate indifference. It would make lit- charge day.” ever was in Nothing tle to hold that sections 209.131 and sense suggests person the record that this impose duty 209.161 to facilitate medical required, encouraged, permitted or even holding treatment while at the same time refer inmates with claims of medical neces impose duty pro- that those sections no sity personnel. Again, to trained medical scribe official interference with such treat- findings the district court made no on this every there is ex- ment. Since reason to simply issue because the court failed to pect prisoners will some arrive at the recognize identify specific duties canes, crutches, slings, with or medi- comprised by language the broad of sec cations, policies it seems evident that some essentially tions and 209.161. 209.131 procedures regulating possession and factual issue is one for the district court to necessary. Any and use of items are those determine, at least in the first instance. course, policies procedures, such prisoners wrong- Housewright’s general must ensure that are not If and Sumner’s necessary admission, fully deprived sup- policies regarding their si- otherwise, plies equipment upon permitted their arrival. For lence or nonmedical earlier, explained Housewright personnel equipment the reasons to confiscate medical advice, responsible obtaining any for establish- without enforcing policies Housewright I proce- such and Sumner submit courts, you did have access to the was there Reed’s admonition could not have been your expected ques- deliberate indifference to serious medical to alert Wood to the fact that his going question. improper only needs. So I’m to rule out that because it concerned tion was situation, measures, Try specific your ques- subsequent to be about what and that remedial far, happened changes regarding general procedures so that affected were not tions Indeed, relevant, you you, inquire standpoint.... if can from that but critical. on his next [Specifically periods topic general question one of the focus is March Wood abandoned the May you altogether inquiry so zero in on what want to and limited his concerning ques- specifically in on whether or zero While Wood’s facts him: [Sumner]." certainly relevancy from him on tion did raise valid concerns not Sumner received a letter Evidence, under rule 407 of the Federal Rules of March entire- for the responsibility full must bear vir- that were confiscations

ly foreseeable confis- those When to occur.

tually certain indif- level of to the rise

cations here, then issue ference, one at did the held lia- must

Housewright and Sumner section 1983. under for their omissions

ble as those reasons

However, the same for II.A, I would re- supra, Part

expressed in an initial court district

mand to the sound- constitutional

determination at NSP.

ness of admission America, STATES

UNITED

Plaintiff-Appellee, CARLSON, J.

Eric

Defendant-Appellant.

No. 89-10226. Appeals, Court

United States

Ninth Circuit. 10, 1990. Jan. Submitted

Argued and

Decided Aluli, Defend- Fed.

Hayden Asst. Public Hawaii, defendant-appel- er, Honolulu, lant. Burke, Atty., Honolu- Asst. U.S.

Michael Hawaii, lu, plaintiff-appellee. WALLACE, Before ALARCON LEAVY, Judges. Circuit WALLACE, Judge: Circuit ve- for a appeals his conviction Carlson mili- a federal offense on speeding hicular of Haw.Rev. in violation tary installation

Case Details

Case Name: David Poe Wood v. Vernon G. Housewright, George Sumner

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 2, 1990

Citation: 900 F.2d 1332

Docket Number: 87-2519

Court Abbreviation: 9th Cir.