NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 6 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN MELNIK, No. 20-15471

Plaintiff-Appellant, D.C. No. 2:17-cv-02378-JCM-EJY v.

ROMEO ARANAS, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Argued and Submitted November 17, 2021 San Francisco, California

Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.

John Melnik appeals from the district court’s decision granting summary

judgment to Dr. Romeo Aranas in this action under 42 U.S.C. § 1983. Melnik, a

Nevada state prisoner, alleges that for more than a year he was denied treatment for

hepatitis C in violation of the Nevada Department of Corrections’ (NDOC) own

medical directive and contrary to physician recommendations. He sued Dr. Aranas,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the prison medical director and chairman of the committee that repeatedly denied

him treatment, for deliberate indifference to his serious medical needs, in violation

of the Eighth Amendment. The district court determined that Dr. Aranas was

entitled to qualified immunity. We have jurisdiction under 28 U.S.C § 1291, and

we reverse and remand for further proceedings.

We review de novo an order granting summary judgment based on qualified

immunity. Horton v. City of Santa Maria, 915 F.3d 592, 606 (9th Cir. 2019). Dr.

Aranas is entitled to qualified immunity unless (1) the disputed facts taken in the

light most favorable to Melnik show that his conduct violated a constitutional right,

and (2) the constitutional right was clearly established at the time he acted. Tolan

v. Cotton, 572 U.S. 650, 655–56 (2014); Taylor v. Barkes, 575 U.S. 822, 824

(2015) (per curiam).

1. Melnik suffered a deprivation of a constitutional right. An inmate

alleging a denial of medical care in violation of the Eighth Amendment must show

that prison officials acted with deliberate indifference to a serious medical need.

Estelle v. Gamble, 429 U.S. 97, 104 (1976); Jett v. Penner, 439 F.3d 1091, 1096

(9th Cir. 2006). Dr. Aranas concedes that hepatitis C is a serious medical need,

leaving only the question of deliberate indifference. While that standard is a

demanding one requiring more than ordinary malpractice, a prison official acts

with deliberate indifference by unduly delaying necessary medical treatment for

2 non-medical reasons. See Colwell v. Bannister, 763 F.3d 1060, 1066, 1068–70 (9th

Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir. 2012).

Physicians repeatedly referred Melnik to the prison’s hepatitis C committee

for treatment, and treatment was repeatedly denied. Dr. Aranas’s own medical

expert opined that denying Melnik treatment was “inconsistent with NDOC policy

and with the standard of care at the time,” regardless of “whether or not subsequent

tests fell a little below [the] threshold” that NDOC required to begin treatment.

That Melnik eventually received treatment does not excuse the months-long delay.

Dr. Aranas suggests that the delay may not have caused long-term damage to

Melnik’s health, but the extent of the harm caused by the delay is a disputed

question of fact not appropriately answered at this stage. On this record, viewed in

the light most favorable to Melnik, Dr. Aranas was deliberately indifferent to

Melnik’s serious medical need.

2. Dr. Aranas may be held liable for his personal involvement in denying

treatment to Melnik. Section 1983 claims cannot be based on vicarious liability;

instead, a supervisor may be held liable only “if he or she was personally involved

in the constitutional deprivation or a sufficient causal connection exists between

the supervisor’s unlawful conduct and the constitutional violation.” Lemire v.

California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074–75 (9th Cir. 2013)

(quoting Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir. 2003)). There is

3 significant evidence of Dr. Aranas’s personal involvement. He discussed the

situation with Melnik and responded to one of his grievances requesting treatment.

And Dr. Aranas was chair of the two-person committee making approvals and

handing down denials. In fact, Dr. Aranas admitted that “[i]t was me as the Chair

of the Hepatitis C Committee that approved Mr. Melnik for treatment,” an

admission that supports an inference that it was he who denied the earlier requests

for treatment. There is, accordingly, at least a question of fact as to whether Dr.

Aranas was personally responsible for the delay.

3. By 2016, numerous decisions of this and other circuits would have

placed a reasonable official on notice that denying an inmate hepatitis C treatment

for non-medical reasons would violate the Eighth Amendment. See, e.g., Andrews

v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (noting that hepatitis C “quite

obviously cause[s] serious health problems, and can result in death”). Taken in the

light most favorable to Melnik, the record shows that treatment was denied

notwithstanding both physician opinion and prison policy to the contrary. No

medical basis for the delay has been suggested. The district court therefore erred in

holding that Dr. Aranas was entitled to qualified immunity.

REVERSED and REMANDED.

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