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NOT FOR PUBLICATION MOLLY C. DWYER, CLERK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 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 (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 diagnosis.

First, although Silvis’s amended complaint recounts two conversations with

defendant Dr. Perry and one with defendant Dr. Rees in 2002, his same complaint

admits that after such conversations, Silvis received a cane to treat his dizziness

and was referred to an outside ear, nose, and throat specialist. And while Silvis’s

2 complaint and the contact log he created allege that he wrote letters to the prison

doctors explaining his symptoms, he has produced no evidence that any of the

defendants actually received such letters. Moreover, Silvis failed to produce

copies of the alleged letters and the summaries offered in his contact log are too

conclusory to create a genuine issue of material fact as to the doctors’ subjective

state of mind. At most, the letters would have given the doctors awareness of facts

from which they could have drawn an inference,1 but Silvis failed to produce

evidence that they actually drew that inference. Thus, even if the court were to

assume that the doctors received the letters, under the Supreme Court’s holding in

Farmer v. Brennan, Silvis’s evidence is insufficient to show that the prison doctors

had subjective awareness of any serious medical need. See Farmer, 511 U.S. at

837.

After his diagnosis, Silvis received adequate medical treatment under the

direction of the prison doctors in this case. His disagreement with respect to the

types of treatments offered is not sufficient to defeat the defendants’ motion for

1 For instance, Silvis’s contact log repeatedly summarizes his letters by asserting that they explained his “medical problems,” “symptoms,” and “condition,” but there is nothing in the log or in any other evidence Silvis has produced that shows that the prison doctors actually used this information to draw the inference that Silvis was experiencing a serious medical need.

3 summary judgment. See Estelle v. Gamble, 429 U.S. 97, 107 (1976); Sanchez v.

Vild, 891 F.2d 240, 242 (9th Cir. 1989).

AFFIRMED.

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FILED

Silvis v. Davis, No. 11-15776 OCT 30 2014

MOLLY C. DWYER, CLERK

THOMAS, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

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:

Prison officials violate the Eighth Amendment if they are deliberately indifferent to a prisoner’s serious medical needs. A medical need is serious if failure to treat it will result in significant injury or the unnecessary and wanton infliction of pain. A prison official is deliberately indifferent to that need if he knows of and disregards an excessive risk to inmate health.

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.

Silvis 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 experienced seizures, dizziness,

headaches, and hearing loss prior to the discovery of his brain tumor. It

specifically alleged that he saw Drs. Perry and Rees in 2002 and informed them of

his symptoms and medical history. It further stated that he advised Dr. Perry of

worsening symptoms in July 2002. Doctors allegedly provided only a cane in

response to these visits. Silvis’s signed declaration in support of his opposition to

summary judgment presented the same allegations in further detail. It also alleged

that Silvis began writing letters to Drs. Davis, Pappenfus, Perry, and Smith

explaining his symptoms upon his arrival at the prison and that he wrote

approximately ten such letters from that time until his tumor was diagnosed in May

2003. The contact log Silvis prepared and lodged with the district court after the

motion for summary judgment was fully briefed specifically documented these

contacts and many others. The log implicated all appellees except Dr. Weed in

Silvis’s pre-diagnosis care. A declaration signed by Silvis and submitted

concurrent to his log stated under the penalty of perjury that the log was accurate

and truthful.

The district court granted summary judgment to the doctors because Silvis

did not show that they consciously disregarded his need for treatment. The court

-2- credited the doctors’ statements that they never refused care and did not

intentionally cause Silvis any injury or harm, and concluded that Silvis failed to

offer any admissible evidence to raise a genuine dispute of material fact.

The district court’s treatment of Silvis’s evidence of the doctors’ deliberate

indifference was error. “Regardless of how evidenced, deliberate indifference to a

prisoner’s serious illness or injury states a cause of action under § 1983.” Estelle v.

Gamble, 429 U.S. 97, 105 (1976). “The requirement of deliberate indifference is

less stringent in cases involving a prisoner’s medical needs than in other cases

involving harm to incarcerated individuals because “[t]he State’s responsibility to

provide inmates with medical care ordinarily does not conflict with competing

administrative concerns.” McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992)

(quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)), overruled on other grounds

by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). In a case

involving deferral or denial of needed surgery, “[a] defendant must purposefully

ignore or fail to respond to a prisoner’s pain or possible medical need” and the

denial of care must be harmful. Id. “Once those prerequisites are met, it is up to

the factfinder to determine whether or not the defendant was deliberately

indifferent to the prisoner’s medical needs.” Id. (quotation marks omitted).

Silvis submitted ample evidence to show that Drs. Pappenfus, Perry, Smith,

-3- Rees, and Davis purposefully ignored or failed to respond to his medical needs. He

thereby met his burden to “go beyond the pleadings” and by his own affidavits or

other evidence “designate specific facts showing that there is a genuine issue for

trial.” See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotation marks

omitted). Silvis’s verified complaint and other pleadings are sufficient evidence to

oppose a motion for summary judgment. See Johnson v. Meltzer, 134 F.3d 1393,

1399–400 (9th Cir. 1998) (verified motion functionally equivalent to an affidavit);

McElyea v. Babbitt, 833 F.2d 196, 197–98 n.1 (9th Cir. 1987) (verified complaint

meets Celotex affidavit requirement).

“[This court has] held consistently that courts should construe liberally

motion papers and pleadings filed by pro se inmates and should avoid applying

summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th

Cir. 2010) (citation omitted). The district court did not follow this command when

it granted summary judgment without credit to Silvis’s sworn complaint,

declaration, and contact log. The contentions, statements, and documents Silvis

produced below raise questions of fact regarding his pre-diagnosis care

inappropriate for resolution on summary judgment. Therefore, I respectfully

dissent.

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