John C. McGuckin v. Dr. Smith John C. Medlen, Dr.

shows, the government gun dealers at Douglas on tried have indicted

should However, Douglas cannot be

that basis. in that was an offense for

convicted (or jury indictment

cluded in the matter). States United for that verdict Cir.

Mastelotto, charged

1983)(court the crime cannot alter on different ele allowing conviction presented than those of the offense

ments indictment). The grand jury to show may be able that.

government- law, it but

Douglas’s conduct violated 922(g), section that he violated

cannot show charged. he was with which crime

Therefore, Douglas’s conviction we reverse possession firearms being a felon in charging the

and dismiss indictment

same.

CONCLUSION above, Doug- reasons set forth

For the the indict- conviction is reversed

las’s

ment is dismissed. McGUCKIN, Plaintiff-Appellant,

John C. Medien, al.; SMITH, et John C.

Dr.

Dr., Defendants-Appellees. 90-16651.

No. Appeals, Court States

United

Ninth Circuit. *. Nov.

Submitted Aug. 1992.

Decided 3(f). 34(a) Rule R.App.P. and Ninth Circuit unanimously this suitable finds case panel *The argument. Fed. oral for decision without McGuckin, pro John C. se. Gen., Skolnik, Tuc- Atty. Bruce L. Asst. son, Ariz.,' defendant-appellee. ‍​‌‌‌‌‌​​​​‌‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌​‌​​​‌‌​​​‌​‍Slutes, Sakrison, Even, Slutes, Tom Pelander, Tucson, Ariz., for defen- Grant & dant-appellee. REINHARDT, POOLE,

Before: FERNANDEZ, Judges. Circuit REINHARDT, Judge: Circuit McGuckin, prison- state John Arizona er, 42 1983 ac- brought proa se U.S.C. § authori- against several medical tion of Correc- Department Arizona ties at the Mеdien, (ADOC) Dr. C. tions John does con- orthopedic specialist who private McGuckin sulting for the ADOC. work were deliber- alleged the defendants medical to his serious ately indifferent with- The district court dismissed needs. claims defendants prejudice his out Buttram, and and Ron Dr. Dimitri Catsaros of de- summary judgment favor granted Dr. Dr. Theodore J. Smith fendants appeals. John G. Medien.

Jurisdiction party has ad Although neither required to are question, dressed sua concerning jurisdiction our raise issues Abernathy Cali sponte. v. Southern 525, (9th Cir. Edison, fornia 1989). Catsa dismissal defendants prejudice”: was “without ros and Buttram “final did not constitute if the dismissal court, do then we the district ]” decision[ jurisdiction ap- (1978) not have over McGuckin’s L.Ed.2d (quoting Catlin v. Unit peal. 28 U.S.C. 1291.1 States, 229, 233, 631, ed 324 U.S. 65 S.Ct. 633, (1945)), 89 L.Ed. 911 and the dismissal rulings generally litiga Final “en[d] ordinarily appealable. See Ordower tion on the merits”. Catlin v. United Feldman, States, Cir. 1987)(“If (1945); a district 89 L.Ed. 911 see also Firstier court’s dismissal leaves Mortg. Co., Mоrtg. plaintiff Co. v. Investors Ins. free to file an amended com -, - & n. plaint, the dismissal is not considered a (1991) 651 & n. 112 L.Ed.2d (noting order.”) appealable cases). final (citing exception). rule and Usually, a dismissal However, important there is an exception prejudice does not “A do so. dis general to that rule: “if the can prejudice opens missal without the door to not cure the defect that led to dismissal or preju a renewed contest. A dismissal with elects to stand on the complaint dismissed brings dice the contest to a close.” Salve ... the order of dismissal is ap- final and Ass’n, son v. Western States Bankcard pealable.” Folsom, 666, Welch v. 925 F.2d 1423, (9th Cir.1984). 731 F.2d 1432 (3d Cir.1991) (citing cases); 668 see also However, Ordower, “finality” inquiry the 1291 (same); 826 F.2d at 1572 § McCal necessarily, dependent not on whether the Ass’n, den v. Library 955 F.2d California operates adjudi district court’s action anas 1214, (9th Cir.), denied, 1224 cert. cation on the example, merits. For while -, 2306, 119 L.Ed.2d 227 jurisdiction dismissals based оn lack of are (1992). (“[Ajppellant required is not to merits, adjudications they on the never amend in preserve right order to are appeal theless “final orders” and are appeal. granted When one is leave to Rogers able under 1291. See v. United amend pleading, may she elect to stand States, 1268, (7th Cir.1990) 902 F.2d 1269 pleading on her appeal, if the other (subject jurisdiction); matter Reuber v. requirements final, appealable for a judg States, 1367, United 773 F.2d 1368 satisfied.”). ment are (D.C.Cir.1985) curiam) (per (personal juris Alternatively, a preju dismissal ‍​‌‌‌‌‌​​​​‌‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌​‌​​​‌‌​​​‌​‍without diction). Rather, inquiry the is whether the may dice litigation intended to end the in litigation decision “ends the and leaves the court involved but not to act as an nothing more for the court to do.” United adjudication on the merits or to the bar Lee, 951, (9th States v. 786 F.2d 956 Cir. filing of a similar action in another court. 1986) cases). (citing order which ef “[A]n disposi Such a dismissal wоuld abe “final” fectively party ap- sends a out of court is appealable. tion and hence pealable.” Id.; Herrington see also See Produc v. Sonoma, 938, (9th Employees tion Maintenance County 706 F.2d 939 & Local 504 Cir.1983) (same). 1397, Corp., v. Roadmaster 954 F.2d (7th Cir.1992) cases); (citing Ordower, 826 A prej- district court’s dismissal “without plaintiff F.2d at 1572. The fact that the First, may udice” one of effects. two have (state could refile the action in another or the district court intend to dismiss a federal) court—or in the same court in a currently-filed per- claim or but finality new action—is irrelevant to the in complaint in mit the to amend his quiry. Inspection See In Re Establishment case, the same action. In such a the dis- “ 1127, 1129(7th Corp., 846 F.2d nothing for trict court does not ‘leave[] Skil Cir.1988) (noting that appeal- dismissal “is judg- the court to do but execute the ”, ancillary even if it is Coopers Lybrand Livesay, proceeding ablе to a ment’ & 2454, 2457, 57 another if forum—even it kicks off the 1. The dismissal of defendants Smith and Med- defendant would not exist unless the dismissal they prejudice: ien was with if were the was final to all. See Frank Briscoe Co. v. Morri defendants, Co., (9th jurisdiction certainly appellate son-Knudsen Cir. 1985); Baptist Hosp., "final decision”. How- Bullock v. would exist over that ever, Memorial White, 1987); were defen- F.2d Cir. because Smith Medien Brookens v. (D.C.Cir.1986) (per But- dants in the same action as Catsaros and tram, 795 riam). cu appellate jurisdiction respect any dismissed McGuc- forum”); in which it see also ber other in the proceeding Buttram, Resources, Inc., against kin’s claims Catsaros Disher Information Cir.1989)(“The 136, 139(7th judge explicitly situa stated district court where, case, as this pur- will follow is different formal Order tion “[a] up winds prejudice added), (emphasis thus appeal” poses dismissal system. federal court litigation in the indicating he felt that his involvement in the state True, continues litigation appeal that an in the case was over and litigation in ends order that But an proper. courts. his “final decision” would be from final and system is dispute:resolution one that the is no indication whatsoever There litiga kicks off though it appealable even anything left court felt it had district cases). another.’’) (citing tion judgment in than to to do other enter case, September which it did then, is whether question, initial that it rendered a therefore find 1990. We preju- “dismissal without court’s district Accordingly, “final decision” on that date. and Buttram Catsaros of defendants dice” ap- jurisdiction over McGuckin’s have litigation to end the intended peal.2 or whether the action them permit court intended Catsaros Defendant prior action complaint that amend his to court McGuckin’s district dismissed dismissal; resolving inquiry, this al- In to against pursuant to Feder- claims Catsaros “ characterization judge’s ‘the trial though 12(b)(6) the Rule of Civil Procedure on al control the classi- his own action cannot of complaint state a ground his failed to ” action,’ v. the United States fication of granted. upon could be claim which relief 2187, 2196, 82, 96, Scott, U.S. 437 the dismissal was McGuckin contends that (1978) (quoting United L.Ed.2d 65 57 court did not improper because the district 470, 547, Jorn, 91 400 S.Ct. v. States of the deficiencies of give him a statement Harlan, (1971) (opinion of 543 27 L.Ed.2d opportunity amend complaint and an to his on what effect the J.)), focus proper the prior to dismissal. its order to have. court intended district Hurtado, Madrid v. de la Gerritsen the district court’s See review de novo We Cir.1987); (9th 1511, Hoo complaint. F.2d pro 819 se dismissal of McGuckin’s n. 1 1171 Ariyoshi, 741 F.2d Carlson, v. huli 1447 v. 809 See Noll the Cir.1984). “focus on We must (9th Cir.1987). complaint typed on (9th His ruling than the label rather given effect 1983 actions a standard “form” for § Lee, v. 786 it.” States United placed prisoners. incarcerated McGuckin’s to Cir.1986). (9th 955 party defen- listed as a complaint Catsaros prop- him to be dant and McGuckin caused ease, clearly the record In the. copy of a summons and a erly served with court intend- the district demonstrates caption complaint. Although only the the of defendants Catsaros its dismissal ed , explicitly mentioned Cat- complaint the litigation to end McGuckin’s Buttram name, complaint body by saros in this action. against those defendants indiffer- allegations of deliberate contained he could was not advised department” of by “the entire medical ence dismissal, prior to nor complaint his amend addition, pa- among other prison. In do so. opportunity to See given McGuckin, reply to pers filed Moreover, district 1055-57. at infra court’s judgment contained a summary motions dis- docketing described the sheet “Defendant Catsaros” 25, paragraph entitled September judgment court’s trict against claims McGuckin’s which detailed “terminating case”. addi- as [the] Catsaros, August his affidavit of Septem- tion, order in the district court’s do, appealable alternate on that deter- dismissal was we need not we hold as Because 2. ’ (noting appellate ground. supra appeal at decision whether McGuckin's mine prejudice jurisdiction over Cat- dismissals of defendants court's dismissal the district complaint or on his when stands decision to when was a and Buttram effect saros futile). would amendment complaint” and thus whether "stand on his described Catsaros’ in- fied him extensively requirement, of that informed him treatment. The volvement McGuckin’s complaint, given how to amend his him the nevertheless dismissed court so, opportunity to explained do to him against McGuckin’s claims Catsaros “be- cоnsequences of his failure to follow plaintiff’s no alle- complaint contains the district court’s instructions. Had him,” gations against despite simultaneous- McGuckin been informed that he was re- recognizing claims ly that “Plaintiff ... quired complaint to amend his so that it deliberate- ... that defendant CATSAROS contained a brief allega- statement of his ignored diagnosis; that he ly Dr. Foote’s against Catsaros, tions there is no doubt confirm refused to order a CT scan to that he could have done so. The dismissal diagnosis; provided and that he ineffective against McGuckin’sclaims Catsaros was pain plaintiff.” treatment improper; therefore accordingly, we re- litigant pro Because “the se is far verse ruling and instruct the district prone making pleading more errors grant court to McGuckin leave to amend. person rep from the than who benefits counsel,” Noll, 809 F.2d resentation at Butlin/Buttrаm Defendant Supreme Court has instructed “[t]he liberally the federal courts to construe the named “Ron But- pleading’ pro litigants.” ‘inartful se El tram” as a defendant allega- and contained Block, dridge tions him. Unfortunately, al- Cir.1987) (quoting Boag MacDougall, though proper McGuckin had identified the 700, 701, person, spelling the correct of the defen- (1982)). L.Ed.2d 551 The law clear that dant’s last name turned out to be “Butlin”. pro before a district court dismiss a se McGuckin, an prisoner pro- incarcerated complaint claim, for failure to state a the ceeding pro pauperis, se arid in forma litigant pro court must the se with understandably was somewhat handi- notice of the deficiencies of his or her com capped ability properly in his to serve the plaint opportunity and an to amend the Nevertheless, in defendants his lawsuit. complaint prior Eldridge, to dismissal. See reasonably he January did well. On 1136; 832 F.2d at see also Ferdik v. Bon days 1990—74 after filed his com- zelet, (9th Cir.1992). plaint requested that a United States —he We often have reversed the dismissal of Marshal serve each of the defendants with pro litigant’s complaint the se when copy complaint. a summons and of his sufficiently explain court did not the com McGuckin included detailed instructions de- plaint’s pro deficiencies to the se signed prop- See, to assist the Marshal to effect prior to dismissal e.g., Karim-Pan Angeles Dept., regard ahi v. Los Police 839 F.2d er service.3 His instructions with to (9th Cir.1988); Eldridge, 832 F.2d service of one of the defendants was as . 1136; Noll, at 809 F.2d at 1449. in follows: “Ron Buttram works the health unit at Safford Prison—in the State Prison notify The court did not McGuckin Safford, Complex at AZ. His home ad- complaint’s asserted deficiencies be dress is will have to unknown—summons it, dismissing permit fore nor did it him to warden, through be served the Eаrl Dou- complaint rectify amend his the omis to dle, prison].” at address of the De- [the sions. If the district court believed that instructions, spite these the Marshal could required allega McGuckin was to list his the not locate “Ron Buttram” and returned against tions defendant Catsaros body complaint, of his it should have summons unexecuted. noti- example, provided address is not available. Server must 3. For McGuckin the follow- His home ing report gate statement to assist Marshal to serve Dr. or call for the doctor to front physician Smith: Unit, Smith is the at Santa Rita "Dr. front as Santa Rita offices state supposed State Prison. He is to be at separate from the Admin. Sec- fenced and morning work from in the until 4 in the tion.” although reporting. afternoon he is often late' 4, 1990, that stated Skolnik, September response an on 1, 1990, Bruce March On General, yet not been Buttram” had filed Attorney “Ron Assistant Arizona spelling of his the correct response to because papers served other answer and “Butlin,” had papers, Mr. that McGuckin In these last name lawsuit. McGuckin’s only of recent- to'represent each of the fact as result learned this claimed Skolnik Among Mar- discovery, that the ly propounded action. defendants McGuckin's Ronald Butlin as answer stated had failed to serve things, Skolnik’s shal other Butler have Butlin’s last misspelling Medien result of [sic] “Defendants should, process and his claims then reiterated served name. been McGuckin pur- therefore, Defendants requested as that Butlin dismissed Butlin of Givil stage Federal Rules 4(j), premature Rule suant to “at this not be dismissed unlikely statement Procedure.”4 That proceeding.” exemplar in a textbook become an matter of found The district court as re- “Butler” pleading: defendant proper against “Ron claims that McGuckin’s fаct by the identified to the defendant ferred against Ron- intended to be were Buttram” “Buttram”; the actual name plaintiff as learned that McGuckin had Butlin and ald “Butlin”; was no there the defendant was name spelling last of Butlin’s the correct involved; of “Butler” by the name person, the time during discovery and after 4(j) under Fed.R.Civ.P. 120-day period then passed. The court had for service Melden and defendant yet expired; had not defendant Buttram/Butlin: dismissed prior weeks several had been served dis- given by the court for its reason sole answer. Skolnik’s “dismissed statement it missal its after days 1990—over March On per- no such BUTTRAM because defendant or court filed his son exists.” —the why claims him to show dered expla questionable whether It is dis should not be Buttram” against "Ron court for that given by the district nation That perfect service. for missed failure for accurately the basis described dismissal requirement warning satisfied notiсe order to The district court’s its action. Cripe, Smith-Bey v. 4(j). Rule Cf. cause, only the example, raised show (holding (D.C.Cir.1988) im claims issue of whether pro se liti sponte dismissal proper sua should Buttram/Butlin against defendant 4(j) Rule complaint under because gant’s 4(j) for his under Fed.R.Civ.P. be dismissed dismissal); prior to given not notice was. days: service within perfect failure to Velez, v. Sanchez Ruiz-Valera the claims mention that did it nowhere Cir.1987) (“A hardly party can (1st the defendant might dismissed because be good cause to ‘show enjoy opportunity an generally However, we exist.” “does not within not made why service was [the such for its explanation court’s take the district has been party if that not required] period’ word, so here. and we action at its do Cf. matter been that the has notice accorded Trust, Pension v. CMTA-IAM Smith reflect issue.”). record does not The put in Cir.1984) (noting that a that notice. respondеd to that McGuckin provide the ratio failure to district court’s his Skolnik reiterated July On requires a generally decision nale for its defendant represented he that statement remand). him “Ron Butlin, identifying as this time appear to not “Butlin”; Although there does “Butler” or than Buttram” rather the Federal explicit basis either in an dis be “Buttram” be requested he then federal stat Procedure or in of Civil fail Rules 4(j) for missed under Rule of a “nonexistent” the dismissal utes for filed perfect ure to service. within that why not service was made 4. Rule the such 4(j) provides that service "[i]f as to that be period, action shall dismissed upon a the complaint is not made summons upon court’s prejudice filing defendant days after defendant within upon party or notice to such own initiative such party on whose behalf complaint and the good motion.” required show cannot service alone, ground likely Moreоver, defendant on that it is the district court’s dis missal of authority that district courts have the to do defendant Buttram/Butlin is er roneous for another example, litigant reason. The so. For were frustrated district judge failed to advise McGuckin that his to sue “Santa in federal court over Claus” complaint against that defendant defi provide the defendant’s tortious failure to cient and failed to him with an requested with certain Christ- opportunity to amend the See complaint. presents, might mas a district court be supra (noting at 1055 the district permitted to dismiss the lawsuit.5 court informed McGuckin possi 4(j) dismissal). ble prior violation Rule Here, however, do not we deal with If McGuckinhad been informed that he had prototypical hypothetical defendant. It misspelled name, easily Butlin’s last undisputed that the individual McGuckin could have amended his referred to the term “Buttram” in his deficiency. remedied that Rеversal there complaint does exist—the district court required fore is for a second reason as (and found McGuckin’sinstructions for ser supra well. (citing at 1054-55 cases demonstrate, amply supra vice see at 1055 reversing dismissal of defendant Cat- 3) misspelling & n. was a “Buttram” basis).6 saros on that addition, of Butlin’s last name. In McGue- properly spelled kin first Butlin’s name and Despite relating the errors correctly occupation, identified his the loca district court’s “non-existent defendant” address, tion of his business the name of theory, nevertheless affirm its de supervisor, his and his role McGuckin’s ground upon cision on a not if relied below Moreover, although treatment. Butlin had clearly the record demonstrates that such a personally copy served with a been required result is as a matter of law. See complaint, attorney repeatedly ap County Kings, Patton v. peared represent Butlin’s interests and (9th Cir.1988) cases). (citing If we counsel; indeed, claimed to his same merely find that the district court’s could attorney represent continues to claim to ground base its result on an alternate —but appeal. inability “Buttram” on The of an required ordinarily is not to do so—we do pro rights litigant incarcerated se civil ground, not affirm on that because spell correctly despite a defendant’s name might judge choose not to base plethora of indicia as to whom the named ground. gen result on that alternate justify defendant refers —does not the dis requirement eral that we remand rather complaint against missal defen except, than affirm where the alternate ground dant. mandates dismissal stems from our may unnecessary: rejecting cogito proposition 5. Such a rule a defendant it on the basis of the be sum). ergo truly presumably who not “dоes exist” cannot subject be served and hence would be to dis- exception require 6. A limited to the "notice” perfect pursuant missal for failure to service to absolutely it is ment exists when clear that the 4(j). (describing Rule See also at 1057-58 infra complaint deficiencies in a cannot be overcome case). application Moreover, 4(j) of Rule Block, by Eldridge v. amendment. See judgment even if a was obtained 1987). exception 1135-36 Cir. That is exist, against an individual who did not we purpose similar in to our rule that we imagine plaintiff that the would find it exceed- upon it is affirm ‍​‌‌‌‌‌​​​​‌‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌​‌​​​‌‌​​​‌​‍on a basis not relied below if ingly any difficult sums from such to collect due litigant clear that a cannot that alter overcome addition, might In such a a defendant. rule ground nate for the court’s decision. regarding instigate metaphysical disputes the ex- (describing rule See at 1057 and limita infra any parties istence of to a lawsuit. tions). exception inapplicable That is here: Cf. Descartes, Philosophy, First Rene Meditation on concluding there no for that defendant is basis Philosophical Writings reprinted in 2 The of "non should be dismissed as Buttram/Butlin (translated by Cottingham, permitted Descartes Rob- John existent” even if McGuckin were to Stothoff, Murdoch) (1984) (dis- Dugald complaint spell ert & amend his to Butlin’s name cussing argument everything (rejecting the properly. that believe See at 1057-58 also infra 4(j)). merely higher being possible exist is a dream of a but defense under Rule to found, As- court district court decisions that curate. the district deference to of discretion. spelling involve the exercise McGuckin learned the correct of 120-day Butlin’s last name after the Appellees the district court’s dis- defend period 4(j) expired, under Rule had at which on not the missal of Buttram/Butlin time moved he the court for additional time exist, ground not that that defendant does Moreover, to the defendant. the fact serve ground but the alternate comply that McGuckin’s failure to with 120-day gener- period not the served within 4(j) the partially Rule due to of fault by 4(j). ally required Appellee’s Rule Rule' prison officials or the Marshal—indi- unsound, 4(j) argument for some of the (as over incar- viduals whom McGuckin an ruling same reasons the district court’s ' prisoner) control—might cerated had little 4(j) states, part, Rule in relevant failed. finding further militate in favor of a of a service of summons and “[i]f “good Finally, cause”.8 the fact that a upon made a defendant attorney repeatedly rep- days filing state’s individual within 120 after the of com- to plaint party and the on whose behalf such resented himself to be counsel defendant good required “Buttram”, cannot show service was and that there wаs evident why made with- prejudice such service was not his lack of to client Butlin as a shall period, service, in that action be dismissed might delay result of the prejudice”, as to that defendant without equities In further in McGuckin’s favor.9 added). (emphasis circumstances, totality view of the clearly “good has demonstrated us, the record before it is On comply his to cause” for failure with Rule fact, McGuckin can clear has show—in 4(j)’s 120-day requirement. See David Sie failure shown—“good cause” to Commentaries, Practice gel, 28 U.S.C.A. serve within the defendant Buttram/Butlin (1991 Supp. Rules 1-11 at 61 C4-38 120-day by 4(j). period required Rule Ordi (“The Pamph.) legislative notes Rule [to plain narily, simple negligence of the 4(j) indicate that if the has made ] adequate not an ex tiff or his counsel is ‘reasonable’ efforts to effect service the satisfy 120-day to cuse for failure ser ‘undoubtedly’ grant court will the time ex Howevеr, 4(j).7 Rule requirement vice Hunt, tension....”); also see Gordon apply leeway courts must considerable (cit (S.D.N.Y.1987) 116 F.R.D. a pro se civil assessing whether when ing legislative discussing numerous comply strictly rights litigants’ failure effect), judicial sources to that time limits such as those established af (2d Cir.1987), firmed, 836 F.2d 462 cert. “good 4(j) should excused for Rule denied, cause”, especially when that litigant is in (1988). short, L.Ed.2d 198 the record Eldridge, 832 F.2d at carcerated. conclusively before us demonstrates McGuckin’s instructions 1136-37. “good cause” there was for McGuckin’s exceptionally U.S. Marshal were detailed exception days failure to serve Butlin within 120 the sole mis and—with name—entirely filing complaint.10 spelling last ac- of his of Butlin’s . Costa, prejudice County 7 See Contra that lack the defendant alone Townsel (9th Cir.1987); "good excep- United States ex. does not constitute cause" for an Contractors, Inc., requirements 4(j)) rel. Genеral DeLoss v. Kenner tion to the don, Rule with Gor- (9th Cir.1985); 764 709-711 Wei v. (noting 116 at conflict cases F.R.D. 321 370, Hawaii, (9th Cir. State 763 371-72 holding prejudice—or lack a but thereof—is curiam). 1985) (per "good in the factor determination of whether exists). cause” Insurance, Sentry F.Supp. 8. Smith 1459, (N.D.Ga.1987) (holding “good 1461-63 note 10.We those same considerations failure to serve was due to cause" negligence when might be relevant to determination whether server). process was named as a defendant within the Butlin applicable and statute of limitations whether Industries, Inc., misspelled name Compare Bryant Butlin’s "relates back” to 9. v. Rohr 530, (W.D.Wash.1987) (holding filing complaint. of the of the time F.R.D. The district court’s decision to dismiss Amendment and is actionable under 42 defendant Buttram/Butlin because he “did U.S.C. 1983. Id. “Such indifference Moreover, not exist” was erroneous. may be manifested in ways. two It may McGuckin was not advised of the basis for appear prison when officials deny, delay or the district court’s dismissal of defendant intentionally interfere with medical treat- prior Buttram/Butlin to the dismissal or ment, or may it be shown by way given opportunity Finally, an to amend. prison which physicians provide medical 4(j) Rule does not a basis for af- Hutchinson, care.” 838 F.2d at 394. firming the district court’s decision.11 Ac- However,. negligence diagnosing “[m]ere reverse, cordingly, we the district court’s treating condition, or a medical dismissal of defendant Buttram/Butlin. more, prisoner’s does not violate a Eighth Smith Medien rights.” Amendment Id. “Medical mal- Defendants practice does not become a constitutional regard its Unlike action with to defen merely violation because the victim is a Buttram/Butlin, dants Catsaros and prisoner. cognizable order to state a district court dismissed McGuckin’s claims claim, prisoner allege must acts or omis- against defendants and Medien оn Smith sufficiently sions harmful to evidence delib- the merits. The district court found that erate indifference to serious medical needs. genuine had not established It is such indifference that can offend regarding issue of material whether fact ‘evolving standards of decency’ in violation “deliberately either defendant was indiffer Eighth Gamble, Amendment.” needs; granted ent” to his medical it then U.S. at 97 S.Ct. at summary judgment 292. to Smith and Medien. grant “We review a court’s of sum A determination of “deliberate

mary judgment de Berg novo. v. Kinche indifference” involves an examination of loe, (9th Cir.1986). 794 F.2d Sum two elements: the seriousness pris if, mary judgment appropriate after oner’s medical need and the nature of the viewing light in the evidence most fa response defendant’s to that party opposing motion, need. “Be vorable genuine society expect prison does not there is no issue of materiаl fact moving party unqualified judg- and the is entitled to ers will have access to health care, as a ment matter of law.” Hutchinson v. deliberate indifference to medical States, United Cir. Eighth needs amounts to an Amendment ” 1988). only if violation those needs are ‘serious.’ — Hudson, at -, S.Ct. at 1000. government obligation has to' “[T]he A “serious” medical need exists if the fail- provide medical care for those whom it prisoner’s ure to treat a condition could incarceration,” punishes by id., and cannot significant injury result in further or the deliberately indifferent to the medical “unnecessary and wanton infliction of prisoners. needs of its See Estelle v. Gam Gamble, pain”. 429 U.S. at 97 S.Ct. at 97, 104, ble, 285, 291, 429 U.S. 97 S.Ct. type 291. Either is not the of “rou- result (1976). appropriate L.Ed.2d 251 in “[T]he ‘part penalty tine discomfort quiry alleges [that] when an inmate pay that criminal offenders for their of- failed to officials attend to serious medical ” — Hudson, against society.’ fenses needs is whether the officials exhibited ‘de ” -, (quoting U.S. at 112 S.Ct. at 1000 liberate indifference.’ Hudson v. McMil 337, 347, 101 lian, -, -, Chapman, Rhodes v. 452 U.S. (1981)). (1992). 69 L.Ed.2d 59 117 L.Ed.2d 156 The “[unnec injury essary pain” upon The existence of an that a reason wanton infliction patient important find individuals under color of law able doctor or would incarcerated ‍​‌‌‌‌‌​​​​‌‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌​‌​​​‌‌​​​‌​‍treatment; Eighth worthy constitutes of comment or violation Although summary judgment grant stronger 11. we affirm the district than his claims those defen- court’s of Medien, Accordingly, to defendants Smith and dants. we will not affirm on that 1059-63, see at we note that ground alternate either. infra may McGuckin’s claims Butlin 1060 404, (9th Comm’rs, 766 F.2d signifi- that Prison condition of a medical

presence curiam). However, finding Cir.1985) a (per daily activi- an individual’s cantly affects in activities resulted that the defendant’s and sub- ties; of chronic existence or the prisoner to is not harm the “substantial” examples of indications pain are stantial 1339-40; Wood, 900 F.2d at necessary, see need for “serious” prisoner has a that a — -, Hudson, U.S. at See, see also e.g., v. Wood medical treatment. in- (9th (rejecting “significant at 998-1000 1337-41 S.Ct. 900 F.2d Housewright, noting requirement that the Con- jury” cases); v. Dental Cir.1990) (citing Hunt signifi- or not (9th Cir.1989). is violated stitution “whether Dept., 865 F.2d evident”),12although a find- injury is cant medical needs prisoner’s Once seriously harmed ing that the inmate was response defendant’s nature of the and the inaction tends by action or the defendant’s established, a have been to those needs support to a claim provide to additional indif “deliberate of whether determination “deliberately indif- that the defendant was made. can be has been established ference” prisoner’s needs: ferent” to the medical indifference of deliberate requirement idly by sat as the fact that an individual involving prison a stringent in cases is less bеing seriously injured human was another in cases than other er’s medical needs ability prevent to despite the defendant’s individuals be to incarcerated volving harm indicium of callous- injury strong is a pro responsibility to State’s “[t]he pris- ness and deliberate indifference ordinarily care inmates with medical vide Gamble, suffering. 429 U.S. at oner’s See competing adminis conflict with does not a defen- (holding at 292 that 97 S.Ct. Hudson, U.S. at trative concerns.” could be “suffi- dant’s action or inaction However, there are -, at 998. indif ciently to harmful evidence deliberate requirements before de- minimum certain needs”); Ortiz ference to serious medical established. can be indifference liberate 1312, 1313-14 City Imperial, 884 purposeful act or First, a there must be Cir.1989) (9th (reversing summary judg part of the defendant. to act on failure of doctors part ment in inaction because produce acсident, although it “An death). inmate’s and nurses resulted in alone to is not that basis anguish, added un- infliction of as wanton be characterized met, prerequisites are those Once to demonstrate necessary pain” sufficient up to determine it is to factfinder indifference, Gamble, 429 U.S. deliberate defendant was “deliber whether or not the added), (emphases at at medical ately prisoner’s indifferent” failure to “an inadvertent nor does ne finding A the defendant’s that needs. a by itself to create adequate medical care” an “iso glect prisoner’s of a was condition 1983. A de- under Id. cause of action occurrence,” Housewright, lated Wood ignore or fail to purposefully fendant must Cir.1990), (9th or an pain possible or prisoner’s respond to a exception,” Toussaint v. McCar “isolated indif- for deliberate medical need order Cir.1986), thy, 801 F.2d established. ferеnce to be of the treatment the defendant’s overall here,’ ordinarily against a find Second, prisoner claim al militates when, as a On the oth surgery,” prisoner ing of deliberate indifference. delay of leges “mere hand, finding the defendant re er deliberate medical “no claim for can make properly peatedly an inmate was harm failed treat unless the denial indifference egregious single or that a failure Board State Shapley v. Nevada ful.” opinion); Wood, ing portion Judge panel suggested Reinhardt’s one member of 12. Reinhardt, J.) (opinion of delays that cause see also id. at 1336 treatment medical opinion joined (noting that Section I of his a defendant’s consti- harm" violate "substantial Wood, by majority panel). that is the Because rights. F.2d at 1335 tutional circuit, Farris, J.). not decide whether rule of our need (opinion Two members holding cоntrary be undercut or suggestion. explicitly rejected See id. would panel Reinhardt, J.) Supreme (refuting Court’s decision with the (opinion conflict at 1339-40 assertion); J.) (opinion Hug, (join- Hudson. at id. suggests ing ac strongly that the defendant’s “massive herniation” of McGuckin’s by upper indif back and torso. tions were motivated “deliberate We shall not at- tempt to recount prisoner’s ference” to the medical needs. McGuckin’s trials and See, prison tribulations with the medical e.g., City Imperial, Ortiz v. estab- during lishment (9th Cir.1989) purposes time. For (per cu appeal, of this we are concerned riam); Dept., Hunt v. Dental the actions of Dr. Smith and Dr. Melden: (9th Cir.1989). sum, In the more seri there no evidence that these individuals prisoner, ous the medical needs of the and perform failed to their duties properly. the more unwarranted the defendant’s ac The earliest contact McGuckin had with needs, light tions in of those the more either of April these individuals was in likely it is that a has established years 1989—almost three injury— after his part indifference” on the “deliberate at which time he was transferred to the defendant. Arizona Complex State Prison in Tucson. end, finding neither a that a Dr. promptly Smith examined him upon his egregious defendant’s actions are or that arrival, and obtained evaluated his medical they significant injury pris resulted history, prescribed painkillers and mild for required oner is in order to establish a period of one month. McGuckin returned prisoner’s violation of the federal constitu 8th, May Smith see at which time rights tional and create a cause of action complained pain that his increasing was Hudson, under 1983. U.S. at § Cf. painkillers and that the help. were of little -, (“The at 1001 theo dissent’s requested Smith then consultation from Dr. ry [precedent] requires an inmate who Medien, private оrthopedic specialist, who alleges excessive use of force to show seri May examined McGuckin on 26th. Medien injury unnecessary ous in addition to the possible concluded that McGuckin had radi- pain misapplies and wanton infliction of culopathy; in order to rule out a herniated ignores [precedent] body and of our disk, Medien recommended that either a CT n (em Eighth jurisprudence.”) Amendment performed. scan or MRI be phasis original). finding While either Despite McGuckin’s condition and Dr. provides great support for a claim that a diagnosis, Medlen’s per- CT scan was not “deliberately defendant was indifferent” to August formed until three months —almost needs, the inmate’s medical “[rjegardless ' after Medleri’s examination. The CT scan evidenced, how deliberate indifference pulposus, revealed a herniated nucleus prisoner’s injury to a serious illness or Medien recommended that McGuckinbe ad- states a under action 1983.” myelogram surgery. mitted for a On Gamble, 429 U.S. at 97 S.Ct. at 291 August Outside Refer- added). (emphasis approved request Melden’s ral Committee There is little doubt that the medi assigned priority it a number of 5. cal treatment received McGuckin was Despite pain and clear need for McGuckin’s originally far from ideal. McGuckin was surgery, inexplicably passed months with- injured in of 1986 while he June any his condition. out further treatment of Camp at the Arizona Prison inmate State again October McGuckin visit- On sought inju Safford. He treatment for his complained pain ed Smith and that his con- years When, ries for over three-and-one-half be tinued to worsen. mid-Novem- surgery required ber, fore the to correct his waiting for sur- McGuckin was still painful performed in Decem gery performed, condition was he filed the to be Finally, ber of 198913—a condition that Dr. Ran on December 1989— lawsuit. som, performed surgery, who over three months after Mr. McGuckin’s unambig- surgery described as “dramatic” and as medical need for constitut- Indeed, might injuries. of his Less than three weeks 13. have been forced to treatment longer proper complaint, injuries treatment had he wait even not filed a among after he filed his were that, action in mid-November § 1983 surgically treated. things, other demanded the immediate suggests district court14 dence before the af- years three diagnosed and over uously prison committee and prison referral per- that a was original injury surgery ter his or Medien— Smith administrators —not condition was .suc- formed and McGuckin’s surgical who scheduled were the ones cessfully treated. charged with ensur- and were treatments proper in delay majority of The vast surgery occurred McGuckin’s ing that occurred for McGuckin medical treatment Although prison officials stated promptly. 1989, period dur- April and between 1986 response to a on November Medien Smith and ing defendants which McGuckin, that “Dr. Medlin grievance by responsi- medical nor had no contact with surgery and if when determine [sic] However, between bility for McGuckin. needed,” appears to mean that statement period in of 1989—a April and December only scheduled only surgery that would be under the care was which McGuckin appropriate— it if Medien felt that was Dr. additional de- both defendants —substantial power had the to schedule not that Medien delay that caused McGuckin lay occurred: particular surgery on a McGuckin for pain and significant amount of suffer interpretation is consistent date.15 That is no doubt that McGuc- anguish. There by both Smith and statements made demon- medical condition pain kin’s and from Medien to McGuc- Medien and а letter that medical need” and his “serious strated 25, 1991, in which he stated kin on October his condi- unnecessary continuation of ‘ significant I no ‘[u]nfortunately, have upon him “harm” pain caused tion and concerning priorities sur- jurisdiction over 1983 claim can be based. See which a § short, presented geries.” In the evidence None of the defendants supra at 1059-60. finding not a basis for a below does why whatsoever any reason has identified “deliberately indif- that either doctor surgery were CT scan McGuckin’s medical condition. ferent” to McGuckin’s his need for promptly after performed Accordingly, grant affirm the of sum- we unambiguously diag- those services Dr. Med- mary judgment to Dr. Smith and result, medical McGuckin’s nosed. As ien. essentially untreated left condition was Conclusion he April to December from over seven months of to endure was forced case, like many ways, this Wood pain. unneсessary (9th Cir.1990), F.2d 1332 Housewright, 900 exemplifies problems confronted both Notwithstanding seriousness litigants condition, by pro se agree with the incarcerated we response to their genu- shortcomings of our he failed to raise a court Wood, unique did regarding needs. As McGuckin fact wheth- ine of material issue may claim under responsible well have valid or Medien was § er either Smith rights that his federal constitutional were There is no delay in his treatment. for the by woefully inadequate medical responsible violated his doctor was that either evidence during time he was incarcer- perform the treatment promptly CT the failure however, likely, procedural nothing in the record to ated. It is there is scan: by those made responsible errors made McGuckin—like that either was demonstrate diagnostic exam- doom his to be com- scheduling of such Wood-^-will efforts for the (however pensated minimally) dep- any way hindered for that either or that inations delay surgery pain also rivation or for the he suffered for over performance. .its years. Unfortunately, ap- fault of three have been the appear to does not pointed representation, will un- Dr. Medien. The evi- McGuckin or either Dr. Smith 15. If 14. Smith’s affidavit officials misled McGuckin as to that Dr. contends charge scheduling is not improperly information includes who was in his medical knowledge. personal See Fed. responsi- within treatment or otherwise failed in their However, 56(e). need consider R.Civ.P. bility treated, promptly to ensure that McGuckin was affidavit for which in Dr. Smith’s statements those officials be liable under knowledge uphold order to personal has 1983; however, named no such defendant is summary grant decision to district court’s in the lawsuit. Medien. judgment Smith and Dr. to Dr. rights any doubtedly pro problems. not be the last se civil statute of limitations litigant procedural pit- 15(a). to fall victim to Fed.R.Civ.P. I would also leave the falls.16 determination the sufficiency pleading question and the good of whether We reverse the dismissal of McGuckin’s cause was shown for the failure to serve claims defendants Catsaros and days within 120 to the district court. Fed. Butlin, grant summary judg- affirm the 4(j). R.Civ.P. Medien, ment to defendants Smith and to the remand the case district court. Third, respect to doctors Smith and Medlin, agree I that summary judgment PART, AFFIRMED IN REVERSED IN proper. proper reading Under no PART, AND REMANDED. concept of deliberate indifference could FERNANDEZ, Judge, Circuit they be found to have violated that consti- concurring: tutional Gamble, standard. See Estelle v. 97, 98-105, 105 n. 97 S.Ct. agree I with the result reached in the 288-291, (1976) 291 n. 50 L.Ed.2d 251 However, majority opinion. agreement my (deliberate indifference standard set forth propositions specifically is to the set examples of deliberate indifference concurrence, forth this and not to the given); Harris, City Canton expansive propositions more and additional cf. 378, 390, opinion. contained in that (1989) (at L.Ed.2d times the need for First, agree jurisdic- I do that we have training is likely so obvious and the lack so because, majority tion over this case as the to lead to constitutional violations that out, points absolutely it is clear that the indifference). there is deliberate dispose district court intended to and did Finally, join suggestion I do not any judg- the entire case when it entered its that under any per- the facts of this case so, is September ment of 1990. That son, itself, prison system guilty or the despite judgment the fact that the itself indifference or deliberate other misconduct. ambiguous in form. are, they It be that but I would not Butlin, Second, I as to Catsaros and any allude to of those Nor matters. would- agrеe that the district court should not regarding I set out detailed statements have dismissed the action without first is- they “facts” lest be taken to be established suing explaining problems in an order on remand. I would leave all of these giving op- McGuckin an matters to the determination of the district portunity to amend to correct those defi- opportunity court after it has had an Carlson, ciencies. Noll I review all of the evidence. would also Cir.1987). not, however, I am make it clear that extent that facts willing to declare that will or to, references are referred those are not the deficiencies will be able to correct factual intended to be decisions which can- I as to Catsaros. would leave that explored not be further or controverted on McGuckin and to the district court’s deter- remand. willing mination. I am also not to declare amendments to name Butlin will be Thus, I concur in the result. him party effective to make to this ac-

tion. I leave to the district court the would

determination of whether the use of what probably an incorrect name ‍​‌‌‌‌‌​​​​‌‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌​‌​​​‌‌​​​‌​‍avoid will first-year haps important, law could with even

16. Even student have in- more an individual legal emphasized formed McGuckin of the need to ensure minimal skills could have spelled correctly, Butlin’s name was to see that need for McGuckin to name the officials served, delays properly responsible he was and to describe the for the in his medical treat- (rather primary body merely claims Catsaros in the of the com- ment than his four med- caregivers) plaint as well as elsewhere. If such assistance ical as defendants in his lawsuit. Cf. rendered, supra (noting had been much of the time and at that the individuals effort charge scheduling expendéd both here and in the district court who were in defendants). unnecessary. surgery could have been rendered Per- were not named as

Case Details

Case Name: John C. McGuckin v. Dr. Smith John C. Medlen, Dr.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 24, 1992

Citation: 974 F.2d 1050

Docket Number: 90-16651

Court Abbreviation: 9th Cir.