Lewis Shaw v. L. Thomas

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 21, 2020
• Docket: 19-15147
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 21 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LEWIS D. SHAW, No. 19-15147

Plaintiff-Appellant, D.C. No. 4:17-cv-00462-YGR

v. MEMORANDUM* L. THOMAS; B. FELLOWS; N. IKEGBU; D. JACOBSEN; M. MCLEAN; RISENHOOVER; ADAM; VENES; ALPAUGH; D. GEORGE; C. SAYRE,

Defendant-Appellees,

and

M. HANSEN; DORFMAN,

Defendants.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted July 17, 2020**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before O’SCANNLAIN, TROTT, N.R. SMITH, Circuit Judges:

Lewis Shaw appeals from the district court’s grant of summary judgment in

favor of prison officials, finding that they were not deliberately indifferent to his

medical needs, that Shaw failed to exhaust his retaliation claim, and that prison

officials were entitled to qualified immunity. The facts of this case are known to

the parties, and we do not repeat them here.

I

The district court did not err in granting summary judgment on Shaw’s

Eighth Amendment claim regarding his thumb injury. Shaw has made no showing

that prison officials acted with deliberate indifference to his medical needs in

cleaning his wound, removing his splint, and denying him surgery. It is undisputed

that after Shaw returned from the outside hospital where his wound was sutured

and a temporary splint applied, he was prescribed antibiotics and pain medication,

received regular dressing changes, and medical officials found no infection in his

thumb. Even if this care were negligent, it does not rise to the level of deliberate

indifference, as Shaw has presented no evidence that officials knew of and ignored

his serious medical needs. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.

2004). It is further undisputed that Shaw was seen regularly by medical officials,

including an orthopedist, to monitor the healing of his fracture and that he

participated in physical therapy sessions. Shaw contends that medical officials

2 removed his splint prematurely. Yet, this amounts to, at most, a difference of

opinion in appropriate medical treatment, which is not enough for an Eighth

Amendment claim. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

II

The district court did not err in granting summary judgment on Shaw’s

retaliation claim against Physician Assistant Thomas. It is undisputed that Shaw

did not even mention the alleged “coercive tactics” in his grievance until the third

level of review. In that grievance, though, Shaw only complained of Thomas’s

inadequate care in dressing changes and removing his splint, not of retaliation.

Since Shaw has failed to exhaust the administrative remedies available to him, he

cannot bring a lawsuit in federal court. 42 U.S.C. § 1997e(a).

III

The district court did not err in granting summary judgment in favor of

prison officials based on qualified immunity. Viewing the evidence in the light

most favorable to Shaw, it would not have been clear to a reasonable medical

doctor, that by reaching certain medical opinions and prescribing certain treatment

based upon examinations of Shaw’s thumb, he was engaging in conduct that

violated clearly established law. See Hamby v. Hammond, 821 F.3d 1085, 1092-94

(9th Cir. 2016). Therefore, the district court properly concluded that prison

officials were entitled to qualified immunity and correctly granted summary

3 judgment in their favor.

IV

The district court did not abuse its discretion in denying Shaw’s motion

under Fed. R. Civ. P. 56(d) to postpone ruling on summary judgment so that he

could conduct additional discovery. Shaw failed to identify specific facts he hoped

to elicit from further discovery and that such facts are essential to oppose summary

judgment. Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525

F.3d 822, 827 (9th Cir. 2008).

AFFIRMED.