NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 22-35355 CHARLES V. REED, D.C. No. 3:16-cv-05993-BHS Plaintiff-Appellee, MEMORANDUM* v.
G. STEVEN HAMMOND; LARA STRICK; SARA KARIKO, FKA Sara Smith,
Defendants-Appellants.
Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding
Argued and Submitted May 12, 2023 Seattle, Washington
Before: HAWKINS, W. FLETCHER, and IKUTA, Circuit Judges. Dissent by Judge IKUTA.
This interlocutory appeal seeks to address the denial of qualified immunity in
a civil rights action by Plaintiff-Appellee Charles Reed (“Reed”) against Defendant-
Appellants Steve Hammond, Lara Strick, and Sara Kariko (collectively,
“Defendants”) who were employed as doctors by the Washington State Department
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. of Corrections. Reed filed suit under 42 U.S.C. § 1983 while incarcerated at the
Stafford Creek Correction Center in Washington, alleging violations of his
constitutional right to adequate medical care through Defendants’ deliberate
indifference to his serious medical needs related to his Hepatitis C treatment.
We review de novo the district court’s summary judgment decision that an
officer was not entitled to qualified immunity, Roybal v. Toppenish Sch. Dist., 871
F.3d 927, 931 (9th Cir. 2017), viewing the facts in the light most favorable to Reed.
See Est. of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017). And
we dismiss Defendants’ appeal for lack of jurisdiction.
An order denying summary judgment is not usually an immediately
appealable final decision, but “that general rule does not apply when the summary
judgment motion is based on a claim of qualified immunity” because “pretrial orders
denying qualified immunity generally fall within the collateral order doctrine.”
Plumhoff v. Rickard, 572 U.S. 765, 771–72 (2014). The scope of our review in these
interlocutory appeals is limited to the “purely legal . . . contention that [an officer’s]
conduct ‘did not violate the [Constitution] and, in any event, did not violate clearly
established law[.]’” Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018)
(per curiam) (quoting Plumhoff, 572 U.S. at 773). Accordingly, those portions of
the district court’s order determining questions of “‘evidence sufficiency,’ i.e.,
which facts a party may, or may not, be able to prove at trial . . . [are] not appealable”
2 until after final judgment. Johnson v. Jones, 515 U.S. 304, 313 (1995). This rule
forecloses interlocutory review of any “fact-related dispute about the pretrial record,
namely, whether or not the evidence in the pretrial record was sufficient to show a
genuine issue of fact for trial.” Est. of Anderson v. Marsh, 985 F.3d 726, 731 (9th
Cir. 2021) (quoting Foster, 908 F.3d at 1210).
This case turns on genuine disputes of fact. The district court concluded that,
“[v]iewed in the light most favorable to Reed, the evidence would permit a jury to
find that the Defendants were deliberately indifferent to Reed’s serious medical
needs, in violation of clearly established constitutional precedent.” It found that a
jury could reasonably conclude that Defendants’ failure to monitor Reed’s condition
and review his treatment plan to be willful ignorance of his medical needs. It further
concluded that a jury could find Defendants were subjectively aware of his
deteriorating condition, based on his grievances, and of the extrahepatic conditions
that could have warranted earlier care. On those contested facts, the district court
held that Defendants are not entitled to qualified immunity.
Accordingly, we lack jurisdiction over this appeal and do not address the
merits of Defendants’ arguments.
DISMISSED.
3 FILED Charles Reed v. G. Steven Hammond et al.; No. 22-35355 JUL 14 2023 IKUTA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS We have jurisdiction over this case because the only issue
presented—whether Steve Hammond, Lara Strick, and Sara Kariko (collectively,
defendants) acted with an improper mental state—is purely legal in nature. See
Jeffers v. Gomez, 267 F.3d 895, 907 (9th Cir. 2001) (per curiam). Here, even if
defendants were medically negligent, there is no genuine issue of fact that they
acted with deliberate indifference. Therefore, I dissent.
I
“An order denying a motion for summary judgment is generally not a final
decision” under 28 U.S.C. § 1291 “and is thus generally not immediately
appealable.” Plumhoff v. Rickard, 572 U.S. 765, 771 (2014). This “general rule
does not apply,” however, “when the summary judgment motion is based on a
claim of qualified immunity.” Id. This is because “pretrial orders denying
qualified immunity generally fall within the collateral order doctrine,” id., and thus
appeals from such orders fall within our jurisdiction, see Andrews v. City of
Henderson, 35 F.4th 710, 715 (9th Cir. 2022). Nevertheless, “[a] public official
may not immediately appeal ‘a fact-related dispute about the pretrial record,
namely, whether or not the evidence in the pretrial record was sufficient to show a
genuine issue of fact for trial.’” Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018) (per curiam) (emphasis omitted) (quoting Johnson v. Jones, 515 U.S.
304, 307 (1995)). “In other words, where a portion of a district court’s summary
judgment order in a qualified immunity case determines only a question of
‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at
trial, it is not a final decision under the collateral order doctrine,” and we lack
jurisdiction. Id. (citation and quotation marks omitted). “To the extent the district
court’s order denies summary judgment on purely legal issues, however, we do
have jurisdiction.” Id.
Whether a defendant acted with a particular motive or mental state is not a
question of fact, but rather is treated as a legal issue. See Jeffers, 267 F.3d at 907.
As we have explained, “when there is an allegation of bad motive, but no evidence
of bad motive, and when the evidence, viewed in the light most favorable to the
plaintiff, demonstrates that the defendant’s conduct was not objectively
unreasonable,” then “our cases permit review.” Id. (emphasis omitted). This
analysis applies equally when “a case involves allegations that a defendant acted
with a certain mental state,” such as deliberate indifference. Id.; see also id.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 22-35355 CHARLES V. REED, D.C. No. 3:16-cv-05993-BHS Plaintiff-Appellee, MEMORANDUM* v.
G. STEVEN HAMMOND; LARA STRICK; SARA KARIKO, FKA Sara Smith,
Defendants-Appellants.
Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding
Argued and Submitted May 12, 2023 Seattle, Washington
Before: HAWKINS, W. FLETCHER, and IKUTA, Circuit Judges. Dissent by Judge IKUTA.
This interlocutory appeal seeks to address the denial of qualified immunity in
a civil rights action by Plaintiff-Appellee Charles Reed (“Reed”) against Defendant-
Appellants Steve Hammond, Lara Strick, and Sara Kariko (collectively,
“Defendants”) who were employed as doctors by the Washington State Department
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. of Corrections. Reed filed suit under 42 U.S.C. § 1983 while incarcerated at the
Stafford Creek Correction Center in Washington, alleging violations of his
constitutional right to adequate medical care through Defendants’ deliberate
indifference to his serious medical needs related to his Hepatitis C treatment.
We review de novo the district court’s summary judgment decision that an
officer was not entitled to qualified immunity, Roybal v. Toppenish Sch. Dist., 871
F.3d 927, 931 (9th Cir. 2017), viewing the facts in the light most favorable to Reed.
See Est. of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017). And
we dismiss Defendants’ appeal for lack of jurisdiction.
An order denying summary judgment is not usually an immediately
appealable final decision, but “that general rule does not apply when the summary
judgment motion is based on a claim of qualified immunity” because “pretrial orders
denying qualified immunity generally fall within the collateral order doctrine.”
Plumhoff v. Rickard, 572 U.S. 765, 771–72 (2014). The scope of our review in these
interlocutory appeals is limited to the “purely legal . . . contention that [an officer’s]
conduct ‘did not violate the [Constitution] and, in any event, did not violate clearly
established law[.]’” Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018)
(per curiam) (quoting Plumhoff, 572 U.S. at 773). Accordingly, those portions of
the district court’s order determining questions of “‘evidence sufficiency,’ i.e.,
which facts a party may, or may not, be able to prove at trial . . . [are] not appealable”
2 until after final judgment. Johnson v. Jones, 515 U.S. 304, 313 (1995). This rule
forecloses interlocutory review of any “fact-related dispute about the pretrial record,
namely, whether or not the evidence in the pretrial record was sufficient to show a
genuine issue of fact for trial.” Est. of Anderson v. Marsh, 985 F.3d 726, 731 (9th
Cir. 2021) (quoting Foster, 908 F.3d at 1210).
This case turns on genuine disputes of fact. The district court concluded that,
“[v]iewed in the light most favorable to Reed, the evidence would permit a jury to
find that the Defendants were deliberately indifferent to Reed’s serious medical
needs, in violation of clearly established constitutional precedent.” It found that a
jury could reasonably conclude that Defendants’ failure to monitor Reed’s condition
and review his treatment plan to be willful ignorance of his medical needs. It further
concluded that a jury could find Defendants were subjectively aware of his
deteriorating condition, based on his grievances, and of the extrahepatic conditions
that could have warranted earlier care. On those contested facts, the district court
held that Defendants are not entitled to qualified immunity.
Accordingly, we lack jurisdiction over this appeal and do not address the
merits of Defendants’ arguments.
DISMISSED.
3 FILED Charles Reed v. G. Steven Hammond et al.; No. 22-35355 JUL 14 2023 IKUTA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS We have jurisdiction over this case because the only issue
presented—whether Steve Hammond, Lara Strick, and Sara Kariko (collectively,
defendants) acted with an improper mental state—is purely legal in nature. See
Jeffers v. Gomez, 267 F.3d 895, 907 (9th Cir. 2001) (per curiam). Here, even if
defendants were medically negligent, there is no genuine issue of fact that they
acted with deliberate indifference. Therefore, I dissent.
I
“An order denying a motion for summary judgment is generally not a final
decision” under 28 U.S.C. § 1291 “and is thus generally not immediately
appealable.” Plumhoff v. Rickard, 572 U.S. 765, 771 (2014). This “general rule
does not apply,” however, “when the summary judgment motion is based on a
claim of qualified immunity.” Id. This is because “pretrial orders denying
qualified immunity generally fall within the collateral order doctrine,” id., and thus
appeals from such orders fall within our jurisdiction, see Andrews v. City of
Henderson, 35 F.4th 710, 715 (9th Cir. 2022). Nevertheless, “[a] public official
may not immediately appeal ‘a fact-related dispute about the pretrial record,
namely, whether or not the evidence in the pretrial record was sufficient to show a
genuine issue of fact for trial.’” Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018) (per curiam) (emphasis omitted) (quoting Johnson v. Jones, 515 U.S.
304, 307 (1995)). “In other words, where a portion of a district court’s summary
judgment order in a qualified immunity case determines only a question of
‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at
trial, it is not a final decision under the collateral order doctrine,” and we lack
jurisdiction. Id. (citation and quotation marks omitted). “To the extent the district
court’s order denies summary judgment on purely legal issues, however, we do
have jurisdiction.” Id.
Whether a defendant acted with a particular motive or mental state is not a
question of fact, but rather is treated as a legal issue. See Jeffers, 267 F.3d at 907.
As we have explained, “when there is an allegation of bad motive, but no evidence
of bad motive, and when the evidence, viewed in the light most favorable to the
plaintiff, demonstrates that the defendant’s conduct was not objectively
unreasonable,” then “our cases permit review.” Id. (emphasis omitted). This
analysis applies equally when “a case involves allegations that a defendant acted
with a certain mental state,” such as deliberate indifference. Id.; see also id. at 913.
II
Here, the majority holds that this case presents an “evidence sufficiency”
issue, Majority at 2 (citation omitted), because the district court ruled that
defendants were “subjectively aware” that Charles Reed’s condition required expedited care, but were “deliberately indifferent” to and demonstrated “willful
ignorance” towards Reed’s medical needs. Majority at 3. But these are merely
legal conclusions about defendants’ mental state. The historical facts relating to
defendants’ conduct, meanwhile, are undisputed. There is no dispute about Reed’s
APRI scores, that Reed’s condition was monitored but no indication for expedited
treatment was found, that the Review Committee reviewed Reed’s case and
concluded his infection was not progressing rapidly, that Reed claimed he had
symptoms he attributed to Hepatitis C, that the Hepatitis C treatment protocol was
changed (and not applied to Reed), or that Strick gave a presentation on Hepatitis
C unrelated to Reed. There are no other facts in the record revealing defendants’
mental state, such as the existence of comments or clinical notes discussing their
views on Reed’s case.
Because there are no material facts in dispute, we are left with only the
purely legal question as to whether defendants’ decision not to expedite Reed’s
treatment (a historical fact) demonstrated that they subjectively knew that Reed’s
condition created a serious medical need, which they then deliberately disregarded
(the legal issue). Because Reed makes “an allegation of bad motive,” Jeffers, 267
F.3d at 907 (emphasis omitted), but presents no evidence that defendants chose not
to expedite his care in conscious disregard of his medical need, he has not raised a
3 genuine issue of material fact for his Eighth Amendment claim. We have
jurisdiction in such circumstances. See id.
Because we have jurisdiction, we should reverse the district court on the first
prong of qualified immunity. To meet the “high legal standard,” Toguchi v.
Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), for his Eighth Amendment deliberate
indifference claim, Reed must show not only that “the course of treatment
[defendants] chose was medically unacceptable under the circumstances,” but also
that it was chosen “in conscious disregard of an excessive risk to [his] health,”
Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); see also Simmons v. G.
Arnett, 47 F.4th 927, 934 (9th Cir. 2022).
Even when drawing all reasonable inferences in Reed’s favor, Reed has not
met this standard. Defendants saw Reed’s case file and complaints, noted his
symptoms, and deferred his treatment under the 2015 protocol. Perhaps this
constituted poor medical care, but “medical malpractice by itself [is] insufficient to
establish a constitutional violation,” meaning that neither the (arguable) provision
of inadequate medical care to Reed, nor the “differences of opinion in medical
treatment” between the parties’ experts, are enough to sustain an Eighth
Amendment claim. Simmons, 47 F.4th at 934; see also Estelle v. Gamble, 429 U.S.
97, 105 (1976). The 2015 presentation by Strick also does not demonstrate that
4 she had actual knowledge that failure to expedite Reed’s treatment posed a
substantial risk of serious harm. Strick’s general knowledge does not establish that
she had actual knowledge that Reed’s Hepatitis-C had progressed and that he was
experiencing extrahepatic symptoms. See Toguchi, 391 F.3d at 1057.
Because we have jurisdiction over this case, we should determine that
defendants are entitled to qualified immunity because Reed failed to raise a
genuine issue of material fact that defendants violated his Eighth Amendment
rights. Therefore, I dissent.