DAVID CHARLES KELLER, Plaintiff - Appellee, v. DR. FAECHER; J.
BATTALINO; W. A. DUNCAN; R. MEYERS, Defendants - Appellants.
No. 01-57179
UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
44 Fed. Appx. 828; 2002 U.S.
App. Lexis 17232
NOTICE:
RULES OF THE NINTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
MEMORANDUM *
Before: T.G. NELSON, PAEZ and TALLMAN,
Circuit Judges.
I
In this civil rights action under 42
U.S.C. § 1983, several California Department of Corrections employees
interlocutorily appeal the district court's order denying their motion for
judgment on the pleadings on the ground of qualified immunity. We have
jurisdiction under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511,
528-30, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). We affirm in part the
district court's order as to Appellant Faecher and affirm its determination
regarding judicial notice. We reverse the district court's judgment as to
Appellants Battalino, Duncan, and Meyers, and remand for entry of an order
granting these Appellants qualified immunity.
II
We
review the district court's denial of qualified immunity on a motion for
judgment on the pleadings de novo. See
Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). n1 In ruling on
qualified immunity, we must consider whether, "taken in the light most
favorable to the party asserting the injury, [] the facts alleged show the officer's conduct violated a
constitutional right" that is clearly established. Saucier v. Katz, 533 U.S. 194, 201, 150 L.
Ed. 2d 272, 121 S. Ct. 2151 (2001); see also Hope v. Pelzer, 153 L. Ed. 2d 666, 122 S. Ct. 2508, 2513-15
(2002). "The relevant, dispositive [*831] inquiry in determining whether a
right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted." Saucier,
533 U.S. at 202.
A.
Dr. Faecher
Keller has failed to adequately
allege facts demonstrating that Dr. Faecher denied, delayed, or intentionally
interfered with his medical treatment in failing to provide a more thorough
medical examination. See Wood v.
Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). A review of Dr. Faecher's
diagnostic notes reveals that Dr. Faecher provided every service that Keller
alleges was not provided during his examination. Further, while Dr. Faecher may
not have sufficiently reviewed Keller's prior x-ray report or requested current
x-rays, whether "an x-ray or additional diagnostic techniques or forms of
treatment [are] indicated is ... a matter for medical judgment" that does
not subject a prisoner to cruel and unusual punishment in violation of the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 107, 50 L. Ed. 2d 251, 97 S.
Ct. 285 (1976).
Keller has, however,
sufficiently alleged that Dr. Faecher acted with deliberate indifference by
recommending the purchase of over-the-counter medication with the knowledge
that Keller may have lacked the funds to make such a purchase. Cf. Shapley v. Nevada Bd. of State Prison
Comm'rs, 766 F.2d 404, 408 (9th Cir. 1985) (absent allegation that prisoner
cannot afford to pay medical fee, prison's policy of charging a fee for medical
treatment did not constitute deliberate indifference). Further, it would be
clear to a reasonable officer in Dr. Faecher's position that this alleged
conduct, which resulted in the effective denial of medical treatment, was
unlawful under clearly established law prohibiting the denial of medical
treatment to prisoners. See Saucier,
533 U.S. at 202; see also Hope, 122
S. Ct. at 2516. The district court therefore properly refused to grant qualified
immunity to Appellant Faecher on a motion for judgment on the pleadings.
B.
Battalino and Duncan
Because Keller has failed to
sufficiently allege that Dr. Faecher's examination resulted in the denial or
delay of medical treatment sufficient to constitute deliberate indifference, he
has not shown how Battalino and Duncan's denial of Keller's appeal regarding
the same examination resulted in an Eighth Amendment violation. See Estelle, 429 U.S. at 107. Further,
because Keller has failed to allege that Battalino and Duncan knew that he
lacked funds in his inmate account to purchase such medication, their denial of
Keller's appeal could not constitute deliberate indifference to a serious risk
of harm, as they did not have subjective knowledge of that risk. See Farmer v. Brennan, 511 U.S. 825, 837, 128
L. Ed. 2d 811, 114 S. Ct. 1970 (1994). The district court therefore erred in
refusing to grant qualified immunity to Battalino and Duncan.
C.
Dr. Meyers
Keller has also failed to establish
a claim against Dr. Meyers. Keller has not alleged that Dr. Meyers was aware of
Keller's claim that he lacked sufficient funds to purchase over-the-counter
medication, or that Dr. Meyers was aware that Keller had relayed this
information to Dr. Faecher. Thus, Dr. Meyers' failure to grant an appeal on
this basis could not constitute deliberate indifference to a serious risk of
harm since he did not have subjective knowledge of that risk. See id.
Further, the facts as alleged fail to support a claim for deliberate
indifference [*832] based on Dr. Meyers' denial of Keller's August 25, 1999,
appeal because Dr. Meyers' action in this regard did not constitute a denial,
delay, or intentional interference with medical treatment. See Wood, 900 F.2d at 1334. The plain
language of Dr. Meyers' statement shows that he was not denying Keller a
medical examination but simply explaining that the appropriate procedure for
obtaining a medical examination was to sign up for sick call. Because Keller
has not alleged that Dr. Meyers' "denial" impeded him from obtaining
the examination he desired, the district court erred in refusing to grant Dr.
Meyers qualified immunity.
III
We review the district court's decision whether to take judicial notice for an abuse of discretion. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Under Federal Rule of Evidence 201(b), a court may not take judicial notice of a fact that is "subject to reasonable dispute." Because the facts as alleged by Keller demonstrate a genuine issue of material fact as to the timing and availability of funds in Keller's inmate account during the period in question, the district court did not abuse its discretion in determining that judicial notice of these prison records was inappropriate.
Each party shall bear its own costs.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
FOOTNOTES:
*This disposition is not
appropriate for publication and may not be cited to or by the courts of this
circuit except as may be provided by Ninth Circuit Rule 36-3.
n1 In reviewing the district court's order denying Appellants'
motion for judgment on the pleadings, we must accept as true all of the
allegations contained in Keller's Fourth Amended Complaint, see Hal
Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir.
1990), and may also consider "documents whose contents are alleged in a
complaint and whose authenticity no party questions," Branch v. Tunnell,
14 F.3d 449, 453-54 (9th Cir. 1994).
While Keller disagrees with Appellants over the content and
meaning of the documents alleged in his Complaint (Dr. Faecher's diagnostic
notes and the materials included in his administrative appeals), he does not
question their authenticity. As such, we may consider these documents in
evaluating the truth of Keller's allegations and are "not required to
accept as true conclusory allegations which are contradicted by [those]
documents." Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir.
1998).
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