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EUGENE OLIVER SWAN,
JR., Plaintiff-Appellant, v. UNITED STATES OF AMERICA and LINDA YOUNG
MILLER, PH.D., Defendants-Appellees.
No. 01-15847
UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. Lexis 3623
January 14, 2002 **,
Submitted, San Francisco, California ** The panel finds this case appropriate
for submission without oral argument pursuant to Fed. R. App. P. 34(a)(2).
March 4, 2002, Filed
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COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS.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 *
* 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 Cir. R. 36-3.
Federal prisoner Eugene Oliver Swan, Jr. ("Swan"), appeals from the
district court's summary judgment in his suit under Bivens, and the Federal
Tort Claims Act, alleging violation of the Eighth Amendment which allegedly
resulted from the deliberate indifference by federal officers to Swan's safety
and health. Swan's left eye was split open in a violent attack and beating by
an inmate and had to be surgically removed. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm the district court's grant of summary judgment
Swan asserts that the United States of America and Linda Young-Miller
("Defendants") violated his rights, and are therefore responsible for
his injury, because Defendants should have acted to prevent the assault, based
on information Swan had previously conveyed to Dr. Young Miller.
The
standard of review of a district court's grant of summary judgment is de
novo. Margolis v. Ryan, 140 F.3d 850,
852 (9th Cir. 1998); Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996) (per
curiam).
The
test for determining whether an official can be shielded by qualified immunity
is two-fold. The court must consider whether (1) "the law governing the
conduct was clearly established," and if so, whether (2) "under that
law, a reasonable official could have believed his conduct was lawful." Thompson
v. Souza, 111 F.3d 694, 698 (9th Cir. 1997).
Given the facts of this case,
Young Miller could reasonably have believed that her discretionary conduct vis
a vis Swan's communications was lawful. Young Miller did concede that is was a
possibility that the inmates might harm Swan, however, her complete testimony
indicates she did not believe there was any serious threat of physical danger
at all. Young Miller had grounds to believe that Swan was not in danger. Young
Miller was treating Swan for symptoms of psychosis and depression, she had
diagnosed him as paranoid, and had learned of his history of physical abuse and
prior sexual abuse and intimidation. Given these diagnoses, Young Miller
reasonably concluded that the confrontation with the other inmates did not pose
an actual risk that Swan would come to physical harm, but rather had caused him
to relive his negative past experiences. These conclusions were later supported
by Swan himself on December 8, 1998, just a few days after he first told Young
Miller of the confrontation, and before any attack or injury occurred, when he
described himself as "paranoid" and stated that his fears could have
been misplaced.
At this second meeting, Swan
displayed a concern that Young Miller not tell anyone about his situation.
Given the general aura of confidentiality surrounding this situation, that
Young Miller respected Swan's wishes does not evince "deliberate
indifference." Without any indicia of deliberate indifference, a prison
official does not possess a sufficiently culpable state of mind to be held
liable for an Eighth Amendment violation.
Farmer v. Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 811, 114 S. Ct. 1970
(1994). Accordingly, Young Miller's conduct did not violate clearly established
statutory or constitutional rights of which a reasonable person could have
known" and she is protected from liability for civil damages by qualified
immunity Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct.
2727 (1982).
Swan also alleges that the
United States is liable under the FTCA because Young Miller was negligent in
failing to take any action after Swan told her of his confrontation with the
threatening inmates. For the reasons discussed above, Young Miller breached no
duty to her patient. Accordingly, no negligence claim can be maintained and
Swan's FTCA claim also fails.
The
district court's grant of summary judgment on both grounds was appropriate.
AFFIRMED.