John Silvis v. R. Davis

concurring in part and dissenting in part:

I agree with the majority that the district court properly granted summary judgment on Silvis’s post-diagnosis claims. However, because I believe there were genuine issues of material fact concerning his pre-diagnosis claims, I respectfully dissent in part.

Viewing the evidence before the district court in the light most favorable to Silvis, there were triable issues of fact as to whether Drs. Pappenfus, Perry, Smith, Rees, and Davis were deliberately indifferent to Silvis’s serious medical needs before his brain tumor was diagnosed. As we recently observed:

Peralta v. Dillard, 744 F.3d 1076, 1081-82 (9th Cir.2014) (en banc) (citations, quotation marks, and brackets omitted).

The fact that Silvis’s brain tumor was a serious medical need is not disputed. Sil-vis asserts that three sources of evidence in the record — his verified complaint, his signed declaration in opposition to summary judgment, and a log of contacts he prepared and declared truthful in an accompanying signed declaration — raised a genuine dispute as to the doctors’ deliberate indifference. His verified complaint alleged that he informed prison officials that he…

MEMORANDUM *

John Silvis appeals from the district court’s grant of summary judgment in favor of the defendants in his 42 U.S.C. § 1983 claim. We affirm.

The district court properly determined that there is no genuine dispute as to any material facts that would establish that the prison doctors violated Silvis’s rights under the Eighth Amendment. See Fed. R.Civ.P. 56.

To establish that the prison doctors were deliberately indifferent to a serious medical need in violation of the Eighth Amendment, Silvis must show that the doctors were aware of facts from which they could draw an inference that a substantial risk of serious harm existed and that they actually drew such an inference. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.2004) (citing Farmer v. Brennan, 511 U.S. 825, 837 , 114 S.Ct. 1970 , 128 L.Ed.2d 811 (1994)). Silvis has failed to produce sufficient evidence that the prison doctors, prior to Silvis’s ultimate diagnosis with acoustic neuroma, intentionally denied him medical care. The evidence Silvis has produced regarding his requests for medical attention is insufficient to show that the prison doctors had subjective awareness of his condition prior to his…

FILED

OCT 30 2014

NOT FOR PUBLICATION MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN ROBERT SILVIS, No. 11-15776

Plaintiff - Appellant, D.C. No. 1:07-cv-00332-LJO-GSA

v.

MEMORANDUM*

R. DAVIS, Doctor; WEED, Doctor;

PAPPENFUS, Doctor; DENNIS SMITH, Doctor; DENIS PERRY; BRIAN M.

REES,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted October 7, 2014 San Francisco, California

Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1 John Silvis appeals from the district court’s grant of summary judgment in

favor of the defendants in his 42 U.S.C. § 1983 claim. We affirm.

The district court properly determined that there is no genuine dispute as to

any material facts that would establish that the prison doctors violated Silvis’s

rights under the Eighth Amendment. See Fed. R. Civ. P. 56.

To establish that…