Gerald Von Tobel v. Johns

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 18, 2022
• Docket: 20-16853
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GERALD VON TOBEL, No. 20-16853

Plaintiff-Appellant, D.C. No. 3:17-cv-00022-RCJ-CLB v.

JOHNS, Dr.; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Argued and Submitted April 15, 2022 San Francisco, California

Before: BYBEE and R. NELSON, Circuit Judges, and BOLTON,** District Judge.

Gerald Von Tobel is a prisoner in the custody of the Nevada Department of

Corrections who suffers from a degenerative condition called trigger finger, which

causes significant pain and renders his hands nearly useless. Von Tobel has

requested surgery for this condition, which the prison’s general care physician, Dr.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. Marsha Johns, allegedly denied or delayed. Von Tobel filed a complaint alleging

that Johns violated his Eighth Amendment rights. We have jurisdiction under 28

U.S.C. § 1291 and reverse the district court’s grant of summary judgment for Johns

because there are triable questions of material fact.

1. “We review de novo a grant of summary judgment,” drawing all

reasonable inferences in the nonmovant’s favor. Pac. Gulf Shipping Co. v. Vigorous

Shipping & Trading S.A., 992 F.3d 893, 897–98 (9th Cir. 2021). When “the

nonmovant bears the burden of persuasion on the ultimate issue,” he “must come

forth with evidence from which a jury could reasonably render a verdict in [his]

favor.” Id. (quoting In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.

2010)).

Von Tobel may “maintain an Eighth Amendment claim based on prison

medical treatment” if he “show[s] ‘deliberate indifference to serious medical

needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v.

Gamble, 429 U.S. 97, 104 (1976)). This is a two-pronged standard, with “both an

objective . . . and a subjective” element. Colwell v. Bannister, 763 F.3d 1060, 1066

(9th Cir. 2014) (quoting Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012)). “To

meet the objective element of the standard, a plaintiff must demonstrate the existence

of a serious medical need,” which “includes the existence of an injury that a

reasonable doctor or patient would find important and worthy of comment or

2 treatment; the presence of a medical condition that significantly affects an

individual’s daily activities; or the existence of chronic and substantial pain.” Id.

(cleaned up) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992)).

There is not a serious dispute that Von Tobel meets the objective prong. Even if this

were disputed, it was likely waived because it was not raised below. Von Tobel v.

Johns, No. 3:17-cv-22-RCJ-CLB, 2020 WL 5637494, at *4 (D. Nev. July 23, 2020)

(“[T]he objective element is not contested.”).1

To establish the subjective element, Von Tobel must prove “the official

‘kn[ew] of and disregard[ed] an excessive risk to inmate health and safety.’ This

‘requires more than an ordinary lack of due care.’” Colwell, 763 F.3d at 1066 (first

quoting Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004); then quoting

Farmer v. Brennan, 511 U.S. 825, 835 (1994)). Not only does the official need to

“be aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, . . . he must also draw the inference.” Id. (quoting Farmer, 511

U.S. at 837). This may happen “when prison officials deny, delay or intentionally

interfere with medical treatment, or it may be shown by the way in which prison

physicians provide medical care.” Id. (quoting Hutchinson v. United States, 838

F.2d 390, 394 (9th Cir. 1988)).

1 We review the magistrate judge’s report and recommendation because the district court fully adopted the report and recommendation to grant summary judgment for Defendants.

3 “Deliberate indifference is a high legal standard [with a] showing of medical

malpractice or negligence [being] insufficient to establish a constitutional

deprivation under the Eighth Amendment.” Toguchi, 391 F.3d at 1060. In addition,

“[a] difference of opinion between a physician and the prisoner—or between

medical professionals—concerning what medical care is appropriate does not

amount to deliberate indifference.” Colwell, 763 F.3d at 1068 (quoting Snow, 681

F.3d at 987). Instead, “the plaintiff ‘must show that the course of treatment the

doctors chose was medically unacceptable under the circumstances’ and that the

defendants ‘chose this course in conscious disregard of an excessive risk to

plaintiff’s health.’” Id. (quoting Snow, 681 F.3d at 988).

2. The district court held that Von Tobel failed to provide evidence on the

subjective prong. First, it held that “Von Tobel has provided no evidence Defendant

Johns was personally responsible for any delay in surgery or treatment.” Von Tobel,

2020 WL 5637494, at *6 (citing McGuckin, 974 F.2d at 1062). But Von Tobel

introduced evidence that when he sent a medical request because his hand was

“locked up” and he was “in severe pain and” wanted “to see a doctor,” Johns said

that “hand surgery was elective surgery and was not important enough for her to be

concerned about.” Von Tobel also declared that Johns said that “it [would be] a

waste of time and money to operate on Von Tobel’s hands, [and that] this is prison

[and Von Tobel] will learn how to compensate and adapt to having hands/fingers

4 that are locked.”

The district court next held that Von Tobel provided no evidence “that the

course of treatment Johns chose was medically unacceptable under the

circumstances and that she chose this course in conscious disregard of an excessive

risk to his health.” Id. (cleaned up) (quoting Snow, 681 F.3d at 988). But Von Tobel

submitted evidence that the four other doctors who examined him all recommended

surgery. The district court held that this evidence showed only “a difference of

opinion between a physician and a prisoner—or between medical professionals.” Id.

A reasonable jury could find that Johns’s denial of surgery was medically

unacceptable and taken in conscious disregard to an excessive risk to Von Tobel’s

health because there is no evidence that Johns had any medical opinion. See Colwell,

763 F.3d at 1068. Von Tobel provides evidence that the surgery was delayed or

prevented because Johns thought the “hand surgery was elective surgery and was

not important enough for her to be concerned about” and because “it [would be] a

waste of time and money.” But no evidence in the record suggests that Johns gave

a medical reason for why Von Tobel’s condition did not require surgery. Instead, a

reasonable jury could find that Johns’s “medical opinion” was one “which a

reasonable person would likely determine to be inferior” to the opinions of the other

four doctors. Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992) (overruled in

part on other grounds).

5 3. In conclusion, we reverse the district court’s grant of summary

judgment because there are triable issues of material fact as to whether Johns was

deliberately indifferent to Von Tobel’s serious medical needs. We also remand to

the district court to consider in the first instance whether Von Tobel has a claim for

injunctive relief.

REVERSED AND REMANDED.