NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LANCE GORDON OCAMPO, No. 20-35990
Plaintiff-Appellant, D.C. No. 1:18-cv-00047-DCN
v. MEMORANDUM* CORIZON, LLC, a Missouri Corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding
Argued and Submitted October 7, 2021 Seattle, Washington
Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges.
Lance Gordan Ocampo (“Ocampo”), a former inmate of North Idaho
Correctional Institution (“NICI”), appeals the district court’s grant of summary
judgment in favor of (1) Corizon, LLC (“Corizon”); (2) Corizon employees Diana
Collins, a nurse practitioner (“NP Collins”), Patti Schmitt, a licensed practical
nurse (“LPN Schmitt”), Keith Bolin, a licensed practical nurse (“LPN Bolin”), and
Jim Dunning, a correctional medical specialist (“CMS Dunning”) (collectively
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 “individual Corizon Defendants”); and (3) Lieutenant Brian Crowl, an NICI
correctional officer (“Lt. Crowl”) (collectively “Defendants”). Ocampo alleged
that Defendants were deliberately indifferent to his serious medical needs while
incarcerated at NICI in violation of the Eighth Amendment and that they were
negligent in their care and treatment of him. We have jurisdiction under 28 U.S.C.
§ 1291.
1. Individual Corizon Defendants. Ocampo argues that NP Collins, LPN
Bolin, LPN Schmitt, and CMS Dunning were deliberately indifferent to his serious
medical needs by failing to promptly contact more senior medical staff who could
have properly diagnosed his condition or promptly request that he be transported to
a hospital. We agree with the district court that the undisputed facts do not show
that the individual Corizon Defendants were deliberately indifferent to Ocampo’s
serious medical condition.1
1 Ocampo argues that, although the district court denied Corizon’s motion to strike the expert report of nurse Cheryl Fabello (“RN Fabello”), the court erred by stating that it would give her testimony “very little weight.” As Ocampo argues, a court may not weigh evidence when ruling on a summary judgment motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Ocampo, however, did not rely on RN Fabello’s report or testimony in opposing Corizon’s motion for summary judgment, nor did the court discuss it when ruling on the motions for summary judgment. Under these circumstances, we fail to see any error. Ocampo also objects to the district court’s exclusion of Dr. Ludwig’s report. Because Dr. Ludwig was not disclosed until the expert rebuttal deadline, the district court properly treated him as a rebuttal witness and restricted his testimony under Federal Rules of Civil Procedure 26(a)(2)(D) and 37(c)(1). 2 “To prevail on an Eighth Amendment claim for inadequate medical care, a
plaintiff must show ‘deliberate indifference’ to his ‘serious medical
needs.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This includes both an “objective
standard,” which requires the plaintiff to show a “serious medical need,” and a
“subjective standard,” which requires a showing of “deliberate indifference.” Id.
The individual Corizon Defendants do not dispute that Ocampo experienced a
serious medical need. Thus, only the subjective prong is at issue.
To establish deliberate indifference, a plaintiff must show that prison
medical officials were “aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists,” and that the defendants actually
“dr[ew] that inference.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1994)). A plaintiff can show deliberate indifference in a “harmful” delay of
medical treatment. Jett v. Penner, 439 F.3d 1091, 1096–98 (9th Cir. 2006);
Toguchi v. Chung, 391 F.3d 1051, 1060–61 (9th Cir. 2004) (concluding that
defendant was not deliberately indifferent where there was no evidence of delay,
and medical staff were “consistently responsive to [the prisoner’s] medical
needs”). Prison medical officials’ “[m]ere negligence in diagnosing or treating a
medical condition, without more, does not violate a prisoner's Eighth Amendment
3 rights.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quoting Estelle, 429
U.S. at 104 ).
The record shows that the individual Corizon Defendants were consistently
responsive to Ocampo’s evolving medical condition, consulting with him at least
seven times in a four-day period to monitor his conditionLPN Bolin examined
Ocampo only once. He checked Ocampo’s vitals and breathing and ensured that
security officers checked on him throughout the night of May 2, 2016. LPN
Schmitt examined Ocampo twice, on May 2 and May 3, 2016. During her first
appointment with Ocampo, LPN Schmitt contacted Dr. Bradley Schaff, DDS, who
prescribed additional antibiotics that LPN Schmitt administered to Ocampo. At the
second appointment, LPN Schmitt ensured that Ocampo’s vitals were normal and
continued treating him with antibiotics. NP Collins evaluated Ocampo only over
the phone, and after receiving a photograph of his condition, she promptly initiated
a transfer to a hospital.
CMS Dunning similarly saw Ocampo twice, each time taking his vitals,
assessing his pain, and referring him for further treatment. At Ocampo’s second
appointment, CMS Dunning either stated that Ocampo was going to need to
“cowboy up” and eat food off his tray or “cowboy up” and wait for the antibiotics
to take effect. Ocampo argues that CMS Dunning’s comment shows that he was
deliberately indifferent to his medical needs. Although Dunning’s comment may
4 have been imprudent, the circumstances under which it was made do not show that
he acted with deliberate indifference.2
None of the individual Corizon Defendants’ interactions with Ocampo show
that they were aware of a “substantial risk” to his health and consciously
disregarded it. Colwell, 763 F.3d at 1066. As the undisputed facts show, the delay
between the evaluations and the decision to transfer Ocampo to a hospital was
relatively short and served the medical purpose of allowing Ocampo’s prescribed
antibiotics to take effect. The short delay in transferring Ocampo to a hospital is
markedly different than those situations where we have held that delay in treatment
constituted deliberate indifference. See Jett, 439 F.3d at 1096–98 (holding that an
over two-month delay between diagnosis and treatment evinced deliberate
indifference); Snow v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LANCE GORDON OCAMPO, No. 20-35990
Plaintiff-Appellant, D.C. No. 1:18-cv-00047-DCN
v. MEMORANDUM* CORIZON, LLC, a Missouri Corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding
Argued and Submitted October 7, 2021 Seattle, Washington
Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges.
Lance Gordan Ocampo (“Ocampo”), a former inmate of North Idaho
Correctional Institution (“NICI”), appeals the district court’s grant of summary
judgment in favor of (1) Corizon, LLC (“Corizon”); (2) Corizon employees Diana
Collins, a nurse practitioner (“NP Collins”), Patti Schmitt, a licensed practical
nurse (“LPN Schmitt”), Keith Bolin, a licensed practical nurse (“LPN Bolin”), and
Jim Dunning, a correctional medical specialist (“CMS Dunning”) (collectively
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 “individual Corizon Defendants”); and (3) Lieutenant Brian Crowl, an NICI
correctional officer (“Lt. Crowl”) (collectively “Defendants”). Ocampo alleged
that Defendants were deliberately indifferent to his serious medical needs while
incarcerated at NICI in violation of the Eighth Amendment and that they were
negligent in their care and treatment of him. We have jurisdiction under 28 U.S.C.
§ 1291.
1. Individual Corizon Defendants. Ocampo argues that NP Collins, LPN
Bolin, LPN Schmitt, and CMS Dunning were deliberately indifferent to his serious
medical needs by failing to promptly contact more senior medical staff who could
have properly diagnosed his condition or promptly request that he be transported to
a hospital. We agree with the district court that the undisputed facts do not show
that the individual Corizon Defendants were deliberately indifferent to Ocampo’s
serious medical condition.1
1 Ocampo argues that, although the district court denied Corizon’s motion to strike the expert report of nurse Cheryl Fabello (“RN Fabello”), the court erred by stating that it would give her testimony “very little weight.” As Ocampo argues, a court may not weigh evidence when ruling on a summary judgment motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Ocampo, however, did not rely on RN Fabello’s report or testimony in opposing Corizon’s motion for summary judgment, nor did the court discuss it when ruling on the motions for summary judgment. Under these circumstances, we fail to see any error. Ocampo also objects to the district court’s exclusion of Dr. Ludwig’s report. Because Dr. Ludwig was not disclosed until the expert rebuttal deadline, the district court properly treated him as a rebuttal witness and restricted his testimony under Federal Rules of Civil Procedure 26(a)(2)(D) and 37(c)(1). 2 “To prevail on an Eighth Amendment claim for inadequate medical care, a
plaintiff must show ‘deliberate indifference’ to his ‘serious medical
needs.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This includes both an “objective
standard,” which requires the plaintiff to show a “serious medical need,” and a
“subjective standard,” which requires a showing of “deliberate indifference.” Id.
The individual Corizon Defendants do not dispute that Ocampo experienced a
serious medical need. Thus, only the subjective prong is at issue.
To establish deliberate indifference, a plaintiff must show that prison
medical officials were “aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists,” and that the defendants actually
“dr[ew] that inference.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1994)). A plaintiff can show deliberate indifference in a “harmful” delay of
medical treatment. Jett v. Penner, 439 F.3d 1091, 1096–98 (9th Cir. 2006);
Toguchi v. Chung, 391 F.3d 1051, 1060–61 (9th Cir. 2004) (concluding that
defendant was not deliberately indifferent where there was no evidence of delay,
and medical staff were “consistently responsive to [the prisoner’s] medical
needs”). Prison medical officials’ “[m]ere negligence in diagnosing or treating a
medical condition, without more, does not violate a prisoner's Eighth Amendment
3 rights.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quoting Estelle, 429
U.S. at 104 ).
The record shows that the individual Corizon Defendants were consistently
responsive to Ocampo’s evolving medical condition, consulting with him at least
seven times in a four-day period to monitor his conditionLPN Bolin examined
Ocampo only once. He checked Ocampo’s vitals and breathing and ensured that
security officers checked on him throughout the night of May 2, 2016. LPN
Schmitt examined Ocampo twice, on May 2 and May 3, 2016. During her first
appointment with Ocampo, LPN Schmitt contacted Dr. Bradley Schaff, DDS, who
prescribed additional antibiotics that LPN Schmitt administered to Ocampo. At the
second appointment, LPN Schmitt ensured that Ocampo’s vitals were normal and
continued treating him with antibiotics. NP Collins evaluated Ocampo only over
the phone, and after receiving a photograph of his condition, she promptly initiated
a transfer to a hospital.
CMS Dunning similarly saw Ocampo twice, each time taking his vitals,
assessing his pain, and referring him for further treatment. At Ocampo’s second
appointment, CMS Dunning either stated that Ocampo was going to need to
“cowboy up” and eat food off his tray or “cowboy up” and wait for the antibiotics
to take effect. Ocampo argues that CMS Dunning’s comment shows that he was
deliberately indifferent to his medical needs. Although Dunning’s comment may
4 have been imprudent, the circumstances under which it was made do not show that
he acted with deliberate indifference.2
None of the individual Corizon Defendants’ interactions with Ocampo show
that they were aware of a “substantial risk” to his health and consciously
disregarded it. Colwell, 763 F.3d at 1066. As the undisputed facts show, the delay
between the evaluations and the decision to transfer Ocampo to a hospital was
relatively short and served the medical purpose of allowing Ocampo’s prescribed
antibiotics to take effect. The short delay in transferring Ocampo to a hospital is
markedly different than those situations where we have held that delay in treatment
constituted deliberate indifference. See Jett, 439 F.3d at 1096–98 (holding that an
over two-month delay between diagnosis and treatment evinced deliberate
indifference); Snow v. McDaniel, 681 F.3d 978, 984–87 (9th Cir. 2012) (holding
that an over two-year delay from diagnosis to treatment showed deliberate
indifference). At most, the individual Corizon Defendants misdiagnosed
Ocampo’s true medical condition, which cannot amount to deliberate indifference.
Lopez, 203 F.3d at 1131.
2 Ocampo also argues that the district court abused its discretion in excluding evidence of CMS Dunning’s prior unprofessional conduct, disciplinary actions and termination under Federal Rules of Evidence 403 and 404. We conclude that the district court did not abuse its discretion in excluding this evidence, which was not directly relevant to CMS Dunning’s state of mind while interacting with Ocampo. Barranco v. 3D Sys. Corp., 952 F.3d 1122, 1127 (9th Cir. 2020). 5 The district court did not err in granting summary judgment on Ocampo’s
Eighth Amendment claim in favor of NP Collins, LPN Schmitt, LPN Bolin, and
CMS Dunning.
2. Defendant Corizon. The claims against Corizon were premised on a
theory of Monell liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
However, because none of the individual Corizon Defendants violated Ocampo’s
Eighth Amendment rights, there is no constitutional violation sufficiently
established to constitute a Monell claim against Corizon. See Mabe v. San
Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110–11 (9th Cir.
2001).
Ocampo argues that he did not waive his state law claims against Corizon
and the individual Corizon Defendants. We disagree. All Corizon Defendants
moved for summary judgment on Ocampo’s state law claims. Ocampo, however,
failed to respond to their arguments and the district court granted the motion as to
these claims. The district court did not err by treating Ocampo’s state law claims
as waived. See Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016). We
therefore do not address these claims.
3. Defendant Lt. Crowl. Ocampo argues that Lt. Crowl was deliberately
indifferent by failing to contact medical providers or request medical transport
after being informed of Ocampo’s condition. Although Lt. Crowl disputed in the
6 district court whether he was informed of Ocampo’s condition, the court did not
resolve that issue and evaluated the claims against Lt. Crowl. Taking the evidence
in the light most favorable to Ocampo as the non-moving party, we assume that
Ocampo, through an unnamed officer, informed Lt. Crowl of his condition and that
Lt. Crowl did not request that Ocampo be transferred to a hospital or contact
Corizon medical staff. Nonetheless, Lt. Crowl’s alleged single, telephonic
interaction with Ocampo falls short of deliberate indifference and fails to establish
an Eighth Amendment violation.
Ocampo also brought a negligence claim against Lt. Crowl under the Idaho
Tort Claims Act (“ITCA”). Idaho Code § 6-904B. Given the institutional context
of Ocampo’s medical claim, the ITCA provides immunity for Lt. Crowl unless
Ocampo can establish that he acted in a manner that was “gross[ly] negligen[t]” or
“reckless, willful and wanton.” Idaho Code § 6-904B(5) (providing immunity for
“[a] governmental . . . employee[] while acting within the course and scope of their
employment” including “any act or omission providing or failing to provide
medical care to a prisoner or person in . . . [a] correctional facility”). For the same
reasons discussed above, Ocampo fails to show that Lt. Crowl was reckless or
grossly negligent under the ITCA.
Although we assume that Lt. Crowl was aware of Ocampo’s condition and
that Ocampo was in severe pain, Lt. Crowl’s failure to request that Ocampo be
7 transferred to a hospital or to contact Corizon medical staff does not establish Lt.
Crowl’s liability under the ITCA. Indeed, under the ITCA, gross negligence is
defined as “doing or failing to do an act which a reasonable person in a similar
situation and of similar responsibility would, with a minimum of contemplation, be
inescapably drawn to recognize his or her duty to do or not do such act and that
failing that duty shows deliberate indifference to the harmful consequences to
others.” Idaho Code § 6-904C. Any difference between the deliberate indifference
standards under the Eighth Amendment and under Idaho Code § 6-904C would be
immaterial under these circumstances. Thus, the district court properly determined
that Lt. Crowl was immune from suit as a governmental employee providing
medical care to a prisoner in a correctional facility. Idaho Code § 6-904B(5).
Ocampo has not presented sufficient evidence to raise a genuine factual dispute
that Lt. Crowl was deliberately indifferent, reckless, or grossly negligent.
Accordingly, the district court did not err in granting summary judgment in favor
of Lt. Crowl on Ocampo’s Eighth Amendment and state law claims.
AFFIRMED.