Patrick Gibson v. Washington State Department Of

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 25, 2019
• Docket: 18-35440
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PATRICK K. GIBSON, No. 18-35440

Plaintiff-Appellant, D.C. No. 3:17-cv-05187-RBL

v. MEMORANDUM* WASHINGTON STATE DEPARTMENT OF CORRECTIONS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Submitted April 17, 2019**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Washington state prisoner Patrick K. Gibson appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate

indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.

* 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). 2004). We affirm in part, reverse in part, and remand.

The district court properly granted summary judgment on Gibson’s

deliberate indifference claim arising from the medical treatment defendants

provided because Gibson failed to raise a genuine dispute of material fact as to

whether defendants’ treatment was medically unacceptable or amounted to more

than mere negligence. See id. at 1057-60 (a prison official is deliberately

indifferent only if he or she knows of and disregards an excessive risk to inmate

health; medical malpractice, negligence, or a difference of opinion concerning the

course of treatment does not amount to deliberate indifference).

The district court properly granted summary judgment on Gibson’s

deliberate indifference claim arising from defendants’ failure to comply with their

own internal procedures because failure to follow departmental regulations alone

does not establish a constitutional violation. See Cousins v. Lockyer, 568 F.3d

1063, 1070-71 (9th Cir. 2009) (failure to follow internal prison policy does not

amount to a constitutional violation).

The district court properly granted summary judgment on Gibson’s

deliberate indifference claim against defendant Fetroe arising from the delay in

Gibson’s medical treatment because Gibson failed to raise a genuine dispute of

material fact as to whether Fetroe was personally involved in the delay of Gibson’s

treatment. See Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (discussing

2 18-35440 the requirements for establishing supervisory liability).

The district court erred in granting summary judgment on Gibson’s

deliberate indifference claim against defendant Kroha arising from the delay in

Gibson’s medical treatment. The district court concluded that Kroha lacked the

requisite intent to delay Gibson’s treatment based in part on Kroha’s assertion that

in June 2015 she completed a report-of-accident form and placed it in Gibson’s

file. However, Gibson offered evidence suggesting that Kroha did not complete

this form, which has never been accounted for or located, and that months later

Gibson obtained a blank report-of-accident form from his supervisor that Gibson

ultimately submitted to the Department of Labor and Industries. See Hutchinson v.

United States, 838 F.2d 390, 394 (9th Cir. 1988) (deliberate indifference “may

appear when prison officials deny, delay or intentionally interfere with medical

treatment”). Because there is a genuine dispute of material fact as to whether

Kroha intentionally delayed Gibson’s medical treatment, we reverse the judgment

on this claim only and remand for further proceedings.

Gibson’s request to supplement the record, set forth in his opening brief, is

denied. Appellees’ motion to strike portions of Gibson’s opening brief (Docket

Entry No. 14) is denied.

The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

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