John Snow v. E.K. McDaniel, et al

Filing

FILED OPINION (BETTY BINNS FLETCHER, STEPHEN R. REINHARDT and A. WALLACE TASHIMA) We deny the defendants motion to supplement the record on appeal, and remand for further proceedings. REVERSED in part, AFFIRMED in part, and REMANDED for further proceedings consistent with this opinion. Snow is awarded costs on appeal. Judge: BBF Authoring, FILED AND ENTERED JUDGMENT. [8191363]

Case: 10-16951

05/25/2012

ID: 8191363

DktEntry: 52-1

Page: 1 of 21

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN OLIVER SNOW,
Plaintiff-Appellant,
v.
E. K. MCDANIEL, in his official
capacity as Warden at ELY STATE
PRISON (ESP); DEBRA BROOKS, in
her official capacity as Associate
Warden for Operations at ESP;
ADAM ENDEL, in his official
capacity as Associate Warden for
Programs at ESP; ROBERT
BANNISTER, M.D. Medical Director
for Nevada Department of
Corrections; STEVEN MACARTHUR;
MAX CARTER,
Defendants-Appellees.





No. 10-16951
D.C. No.
3:08-cv-00046-RCJVPC
OPINION



Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted October 13, 2011
Submission Withdrawn October 24, 2011
Resubmitted May 25, 2012
San Francisco, California
Filed May 25, 2012
Before: Betty B. Fletcher, Stephen Reinhardt, and
A. Wallace Tashima, Circuit Judges.
Opinion by Judge B. Fletcher
5747

Case: 10-16951

05/25/2012

ID: 8191363

SNOW v. MCDANIEL

DktEntry: 52-1

Page: 2 of 21

5751

COUNSEL
Marc Picker (argued), Angela Lightner, Marc Picker, Esq.,
Ltd., Reno, Nevada, for the appellant.
Clark G. Leslie, Senior Deputy Attorney General, Carson
City, Nevada, for the appellees.

OPINION
B. FLETCHER, Circuit Judge:
John Snow, a 69-year-old death-row inmate, appeals the
grant of summary judgment denying his claims for violations
of his rights under the Eighth Amendment. Snow claims that
the doctors and wardens in the Nevada Department of Corrections were deliberately indifferent to his medical needs; specifically, the diagnosis by more than one orthopedic surgeon
that Snow needed surgery to replace both of his hips, which
have degenerated so severely that Snow has excruciating pain
and can barely walk. Snow’s medical records and statements
by physicians and specialists in the records, and all reasonable
interferences in favor of Snow drawn from the records, suggest that the defendants’ actions violated Snow’s Eighth

Case: 10-16951

5752

05/25/2012

ID: 8191363

DktEntry: 52-1

Page: 3 of 21

SNOW v. MCDANIEL

Amendment rights. We have jurisdiction under 28 U.S.C.
§ 1291. We reverse in part, affirm in part, and remand.
I
Because this case was resolved at summary judgment, we
present the facts in the light most favorable to Snow as the
non-moving party. RK Ventures, Inc. v. City of Seattle, 307
F.3d 1045, 1051 n.1 (9th Cir. 2002).
Snow is a prisoner in the custody of the Nevada Department of Corrections (“NDOC”). Before he began experiencing chronic hip pain in 2004, Snow was able to walk and
exercise normally. Today, Snow cannot exercise and he needs
assistance just to get up off of his bunk. Even with help, Snow
can barely walk because of the pain caused by his degenerative hip disease.
Snow first complained to NDOC medical staff about his
hip and leg pain in 2005. Steven MacArthur, M.D., a NDOC
staff physician, examined Snow in late 2005. He told Snow
that he would schedule an appointment for Snow to see an
orthopedic surgeon about his hip and leg pain. Dr. MacArthur
never put anything into Snow’s chart about a referral, however, and never scheduled an appointment. In January 2006,
in response to a medical kite (i.e., a written request) submitted
by Snow, NDOC medical staff prescribed ibuprofen and
ordered hip x-rays. Eric Goldberg, M.D., examined the x-rays
in March 2006. The x-rays showed that Snow had three pins
in his left hip. Investigation suggested this had been done as
a child to stabilize a slipped capital epiphysis. Dr. Goldberg
diagnosed Snow as having severe degenerative changes in
both of his hips. A staff nurse saw the x-rays and told Snow
that the amount of degeneration and arthritis shown by the xrays was “very impressive.” To address the hip pain and
degeneration, NDOC medical staff prescribed Neurontin, a
neuropathic pain reliever, and Tums.

Case: 10-16951

05/25/2012

ID: 8191363

SNOW v. MCDANIEL

DktEntry: 52-1

Page: 4 of 21

5753

An orthopedic surgeon finally examined Snow in September 2006. Mark Rhodes, M.D., an independent medical consultant, confirmed that Snow’s hips exhibited severe
degeneration. Based on his observations, Dr. Rhodes guessed
that Snow was in distressing pain due to the condition of his
hips. Based on his clinical findings, Dr. Rhodes expected
Snow to suffer from excruciating and unbearable pain. He
was surprised Snow was able to walk at all. Dr. Rhodes prescribed pain relievers, and stated that in the long term Snow
needed a bilateral total hip arthroplasty (“THA”) to replace
both hip joints. Mark Bishop, M.D., Snow’s NDOC treating
physician, reviewed Dr. Rhodes’s notes and ordered pain
relievers for Snow.
Snow saw Dr. Rhodes again in January 2007. Dr. Rhodes
wrote in his notes that Snow “can barely walk” due to his
degenerated hips and that “[t]here is no option here other than
surgery for relief (THA Bilateral).” Dr. Rhodes indicated that
Snow’s condition was an “emergency,” and that although it
significantly affected Snow’s quality of life, it was not lifethreatening. As a short-term measure to offer Snow relief until
he was able to get hip surgery, Dr. Rhodes prescribed a nonsteroidal anti-inflammatory drug (“NSAID”) called Indocin.
Dr. Bishop ordered the Indocin and referred the recommendation for surgery to the NDOC Utilization Review Panel
(“URP”). The URP is composed of six NDOC physicians who
are board-certified in family medicine or other similar disciplines, and includes the NDOC Medical Director. The URP
reviews requests for significant medical procedures by outside
providers, such as surgery for an inmate. The URP denied the
“emergency” recommendation for Snow to undergo hip surgery because “it was not a life[-]threatening situation.” The
URP stated only that it was “[o]kay to treat pain” but that
there would be “[n]o joint replacements.”
Snow continued to have significant hip pain, and sporadically received the pain medication and Indocin that had been

Case: 10-16951

5754

05/25/2012

ID: 8191363

DktEntry: 52-1

Page: 5 of 21

SNOW v. MCDANIEL

prescribed for him. In March 2007, Warden E.K. McDaniel
approved a request from the medical staff to prohibit corrections officers from using ankle restraints on Snow or from
ordering Snow to kneel. The request states that Snow “has
frozen hips [and] joints” and that he “needs hip replacement.”
In July, Dr. Bishop referred Snow to NDOC’s Regional
Medical Facility, a facility that provides full-time medical
care for inmates, because Snow’s creatinine levels were very
high. Dr. Bishop concluded that Snow’s creatinine levels were
going up because of the NSAIDs he was taking to manage his
severely degenerated hips. Dr. Bishop submitted an “urgent”
request to the URP for Snow to receive hip surgery, writing
that Snow “[n]eeds hip surgery[;] creatinine rapidly rising on
needed pain meds.” In contrast to the request for surgery in
January, Dr. Bishop changed his mind and stated that Snow’s
medical problem was “potentially life threatening.”
David Mar, M.D., another NDOC physician, examined
Snow two weeks later and prescribed Tylenol and an analgesic balm for his pain. Dr. Mar decided that nothing else was
needed. The URP reviewed and rejected the recommendation
for hip surgery.
Robert Bannister, M.D., the NDOC Medical Director,
noted in Snow’s medical chart that NSAIDs can be nephrotoxic when combined with other medications taken regularly
by Snow. Dr. Bannister ordered an increase in the dosage of
Tylenol Snow received each morning and additionally prescribed Tylenol with codeine to take every night. Although
Snow could not kneel or exercise outside and had to use a
wheelchair to go to the visiting area, Dr. Bannister concluded
that Snow was “functioning satisfactorily in his current living
situation and in performance of any required activities.” Later,
because the NDOC could not provide Snow with enough of
the analgesic balm prescribed by Dr. Mar, NDOC medical
staff supplemented Snow’s medication regimen with oxycodone, a powerful narcotic. NDOC medical staff subsequently

Case: 10-16951

05/25/2012

ID: 8191363

DktEntry: 52-1

SNOW v. MCDANIEL

Page: 6 of 21

5755

prescribed a regular dose of oxycodone to allow Snow to be
able to get through the day.
In 2008, Snow filed a complaint alleging several 42 U.S.C.
§ 1983 claims. In his first amended complaint, Snow alleges
that prison officials, acting in their individual and official
capacities, violated his rights under the Fourth, Eighth, and
Fourteenth Amendments. Count I of the first amended complaint requests declaratory and injunctive relief to remedy a
custom or policy of inappropriate treatment of serious medical
conditions, such as his hip condition. Count II requests damages for the defendants’ deliberate indifference to Snow’s
medical needs and their deliberate interference with recommended medical treatment. Count III requests damages under
the same cause of action as Count I. The rest of Snow’s
claims were dismissed by the district court after the defendants filed a motion to dismiss.
After Snow filed his lawsuit, the defendants sent Snow to
see another orthopedic surgeon. Richard Long, M.D.,
described Snow’s condition from 2004 to 2008:
He has progressively worsened to where at this time
he is able to walk only a few feet unsupported. He
has not left his building to go outside in the yard to
exercise for two years. He can get down a flight of
stairs, hanging on to the banister. He can walk probably 50 feet, to a shower and back unsupported, but
with difficulty. He is able to sleep only on his side.
He has extreme difficulty getting any socks on and
his pants on.
Dr. Long recommended a bilateral THA for Snow. The URP
again rejected surgery.
More than a year later, in September 2009, the URP finally
approved Snow for bilateral THA surgery.

Case: 10-16951

5756

05/25/2012

ID: 8191363

DktEntry: 52-1

Page: 7 of 21

SNOW v. MCDANIEL

In 2010, the defendants filed a motion for summary judgment. The magistrate judge submitted a report and recommendation to the district court, in which he concluded that there
was a material issue of fact as to whether the defendants’
treatment of Snow was medically acceptable. The magistrate
judge also recommended that five of the six defendants
named in the lawsuit were not entitled to summary judgment
because there were material issues of fact as to whether they
had been deliberately indifferent to Snow’s serious hip condition. Next, the magistrate judge concluded that Snow’s claim
for injunctive relief was moot based on the 2009 URP
approval of bilateral THA surgery for Snow and a scheduled
date for the surgery that had already passed.
Snow filed objections to the magistrate judge’s report and
recommendation. Snow objected that he did not have hip surgery in 2009 and that hip surgery had never been scheduled
by the NDOC.
The district court rejected the report and recommendation,
and granted the defendants’ motion for summary judgment.
The district court concluded that there was merely a disagreement of opinion about the treatment of Snow with pain medications until surgery was approved in 2009. The district court
stated that “[p]laintiff has provided no evidence to support
that the use of pain medications, as prescribed by the treating
medical officials, was medically unacceptable under the circumstances as required by the Ninth Circuit.” The district
court did not discuss the magistrate judge’s recommendations
on Snow’s policy and practice claims and did not reach the
issue of personal liability for each defendant.
II
A
Snow contends that the district court erred by granting
summary judgment on Count II—his claim that the defen-

Case: 10-16951

05/25/2012

ID: 8191363

SNOW v. MCDANIEL

DktEntry: 52-1

Page: 8 of 21

5757

dants were deliberately indifferent to his serious medical
needs and that they deliberately interfered with the recommendation that he undergo a bilateral THA. We review a
grant of summary judgment de novo and must determine,
viewing the facts in the light most favorable to the nonmoving
party, whether there are any genuine issues of material fact
and whether the district court correctly applied the relevant
substantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.
2000) (en banc).
[1] The Eighth Amendment prohibits the imposition of
cruel and unusual punishment and “embodies broad and idealistic concepts of dignity, civilized standards, humanity, and
decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quotation marks removed). A prison official violates the Eighth
Amendment when he acts with “deliberate indifference” to
the serious medical needs of an inmate. Farmer v. Brennan,
511 U.S. 825, 828 (1994). To establish an Eighth Amendment
violation, a plaintiff must satisfy both an objective standard—
that the deprivation was serious enough to constitute cruel and
unusual punishment—and a subjective standard—deliberate
indifference.
[2] To meet the objective standard, the denial of a plaintiff ’s serious medical need must result in the “unnecessary
and wanton infliction of pain.” Estelle, 429 U.S. at 104. The
State concedes that Snow’s hip condition presents a serious
medical need and meets the objective standard.
The subjective standard of deliberate indifference requires
“more than ordinary lack of due care for the prisoner’s interests or safety.” Farmer, 511 U.S. at 835 (quoting Whitley v.
Albers, 475 U.S. 312, 319 (1986)). The state of mind for
deliberate indifference is subjective recklessness. See id. at
835-41. But the standard is “less stringent in cases involving
a prisoner’s medical needs . . . because ‘the State’s responsibility to provide inmates with medical care ordinarily does not
conflict with competing administrative concerns.’ ”

Case: 10-16951

5758

05/25/2012

ID: 8191363

DktEntry: 52-1

Page: 9 of 21

SNOW v. MCDANIEL

McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (partially overruled on other grounds) (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)) (alterations omitted). Similarly,
“[i]n deciding whether there has been deliberate indifference
to an inmate’s serious medical needs, we need not defer to the
judgment of prison doctors or administrators.” Hunt v. Dental
Dep’t, 865 F.2d 198, 200 (9th Cir. 1989).
[3] The record shows that the defendants provided medical
care, medications, and specialist referrals to Snow during the
period in question. Even so, “[a] prisoner need not prove that
he was completely denied medical care” in order to prevail.
Lopez, 203 F.3d at 1132. Here, Snow may prove deliberate
indifference by showing that prison administrators or physicians denied, delayed, or intentionally interfered with surgery
for his hip condition, or that the way prison staff delivered
medical care indicated deliberate indifference. See id. (citing
Estelle, 429 U.S. at 105).
We are specifically concerned with the URP’s repeated
denials of bilateral THA surgery, which had been recommended by specialists and by Snow’s treating physician.
According to the URP policies, when deciding whether to
approve a significant medical procedure, such as surgery for
an inmate, the URP considers factors such as the length of the
inmate’s remaining sentence, how well the inmate is able to
perform activities of daily living, the available resources, and
the risks and benefits of the proposal. The URP policy officially classifies joint replacement surgery as “not always necessary.” Stated differently, the URP policy supports
approving joint replacement surgery when the inmate’s condition significantly interferes with his or her ability to function
in prison.
But instead of approving the needed hip surgery when
Snow’s treating physician and a specialist considered the
request an “emergency” and when the hip condition began to
significantly interfere with Snow’s ability to function—the

Case: 10-16951

05/25/2012

ID: 8191363

SNOW v. MCDANIEL

DktEntry: 52-1

Page: 10 of 21

5759

medical staff and warden had to prohibit corrections officers
from using ankle restraints on Snow or ordering him to kneel,
among other limitations—the URP repeatedly refused to
authorize the procedure. The URP gave no medical reason for
the denials. Instead, the URP either gave no reason at all, or
flatly told Snow that they would not approve any requests for
joint replacement surgery.
The case of Hamilton v. Endell, 981 F.2d 1062 (9th Cir.
1992) (overruled in part on other grounds), is instructive. In
Hamilton, the prison officials referred the plaintiff to a surgeon to treat a chronic ear problem. At the same time, the
prison officials tried to arrange a flight to transport the plaintiff from the state prison in Alaska to a federal facility in
Oklahoma. The surgeon, who operated on the plaintiff ’s ear
several times, instructed that the plaintiff ’s “ear had not yet
healed and the [the plaintiff] should . . . not fly anywhere for
about six months.” Id. at 1064. Despite these instructions, the
defendants solicited a second medical opinion from another
physician. The second physician stated, based on his own personal experience and based upon consultation with another
specialist—but not based on examination of the plaintiff or
discussion with the surgeon—that the plaintiff could fly
immediately. The plaintiff alleged that he suffered severe
damage to his ear as a result of the flight. Analogizing to
cases that found deliberate indifference where prison officials
and doctors deliberately ignored a prior physician’s instructions for reasons unrelated to the medical needs of the prisoner, the court held that “choosing to rely upon a medical
opinion which a reasonable person would likely determine to
be inferior” and forcing the plaintiff to fly “may have
amounted to the denial of medical treatment” and could have
constituted deliberate indifference. Id. at 1067.
[4] As in Hamilton, the circumstances here raise an inference that the defendants were unreasonably relying on their
own non-specialized conclusions with deliberate indifference
to Snow’s medical needs. Both orthopedic surgeons hired by

Case: 10-16951

5760

05/25/2012

ID: 8191363

DktEntry: 52-1

Page: 11 of 21

SNOW v. MCDANIEL

NDOC to consult on this case recommended a bilateral THA,
and did not recommend indefinite maintenance on NSAIDs,
steroids, and narcotics as a solution. The NDOC physician
who treated Snow and who submitted the two 2007 requests
for surgery to the URP described the requests as an “emergency” and as “urgent.” Conversely, the NDOC physicians on the
URP are not board-certified in orthopedic surgery or in
related disciplines, and with isolated exceptions none of them
ever directly examined or treated Snow. Only the July 2007
denial by the URP purported to rely on a contrary medical
opinion by a non-specialist physician who examined Snow.
[5] Further, evidence in the record suggests that the URP
ignored the recommendations of specialists and treating physicians for reasons unrelated to Snow’s medical needs. During
his deposition, Theodore D’Amico, M.D., who was the previous NDOC medical director, testified that he did not recall
any hip replacement surgeries at all during his tenure. And a
former NDOC nurse testified that around this time there was
an official policy against treating chronic pain, and Warden
McDaniel told the medical staff that “[i]f one of these [death
row] inmates gets deathly ill, don’t knock yourself out to save
their life. There’s plenty more to take their place.” This deposition testimony supports the inference that the defendants had
improper motives when applying the URP policy to deny joint
replacement surgery and medical services to death row
inmates. A reasonable jury could conclude that the defendants
refused to authorize surgery in order to avoid eventually paying for it, relying on the possibility that Snow could die of
natural causes or be executed by the State in the near future.
Evidence of an improper motive can support a conclusion that
a defendant acted with deliberate indifference. George v.
Sonoma Cnty. Sheriff’s Dep’t, 732 F. Supp. 2d 922, 937 (N.D.
Cal. 2010) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th
Cir. 1996)); see also Jones v. Johnson, 781 F.2d 769, 771 (9th
Cir. 1986) (holding that budgetary constraints do not justify
cruel and unusual punishment).

Case: 10-16951

05/25/2012

ID: 8191363

SNOW v. MCDANIEL

DktEntry: 52-1

Page: 12 of 21

5761

[6] We conclude that a reasonable jury could find that the
defendants acted with deliberate indifference to Snow’s medical needs when they refused to authorize the recommended
joint-replacement surgery. The record also shows that Snow
presented sufficient evidence to support a finding that he was
substantially harmed by the defendants’ refusal to treat his hip
condition as recommended. See McGuckin, 974 F.2d at 1060
(requiring plaintiffs to show that delay led to further injury in
cases of deliberate indifference based on the delay of medical
care).
B
The defendants argue and the district court ruled at summary judgment that the decision by NDOC physicians to treat
Snow pharmacologically rather than surgically was medically
acceptable, and that Snow cannot base his claimed Eighth
Amendment violation on a mere difference of opinion over
the course of treatment. Even if it is possible to characterize
the treatment decisions of the URP this way, we disagree with
the conclusion that the defendants are entitled to summary
judgment on these grounds.
A difference of opinion between a physician and the
prisoner—or between medical professionals—concerning
what medical care is appropriate does not amount to deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir
1989). Even proof that a physician has committed medical
malpractice does not necessarily violate the Eighth Amendment. See Estelle, 429 U.S. at 106. To show deliberate indifference, the plaintiff “must show that the course of treatment
the doctors chose was medically unacceptable under the circumstances” and that the defendants “chose this course in
conscious disregard of an excessive risk to plaintiff ’s health.”
Jackson, 90 F.3d at 332 (internal citations removed).
There is clearly a difference of medical opinion here. On
the one hand, physicians often attempt non-surgical interven-

Case: 10-16951

5762

05/25/2012

ID: 8191363

DktEntry: 52-1

Page: 13 of 21

SNOW v. MCDANIEL

tions to address hip pain.1 The NDOC physicians on the URP,
who are all board-certified in family medicine or other similar
disciplines, decided to treat Snow’s hip pain and immobility
with medication instead of surgery. This persisted for several
years. The NDOC physicians adjusted the medications to
increasingly rely on narcotics when Snow’s creatinine levels
rose to dangerous levels. On the other hand, from 2007
through 2009 two orthopedic specialists and Snow’s NDOC
treating physician recommended bilateral THA surgery.
[7] The defendants argue that this was merely a difference
of opinion that cannot amount to deliberate indifference. We
disagree. Based on the unchallenged medical records and
inferences drawn in favor of Snow, a reasonable jury could
conclude that the decision of the non-treating, non-specialist
physicians to repeatedly deny the recommendations for surgery was medically unacceptable under all of the circumstances.
[8] After Snow developed severe hip pain, the defendants
eventually sent him for evaluation by orthopedic surgeons.
Both specialists hired by the NDOC recommended bilateral
THA surgery. One of the specialists, Dr. Rhodes, testified at
his deposition that Snow’s likelihood of success after a THA
was very high, and that surgery would help improve Snow’s
health and mobility. And Dr. Rhodes testified that after surgery Snow’s hip pain would probably disappear, and that
Snow would no longer require any painkillers for his hips.
Conversely, neither specialist recommended indefinite maintenance on NSAIDs, steroids, or narcotics. The record also
shows that medications may have harmed Snow’s kidneys,
and that the narcotics did not alleviate Snow’s significant
mobility issues. In fact, Dr. Rhodes stated in January 2007
1

See Questions and Answers about Hip Replacement, National Institute
of Arthritis and Musculoskeletal and Skin Diseases, available at
http://www.niams.nih.gov/Health_Info/Hip_Replacement/default.asp (last
visited May 17, 2012).

Case: 10-16951

05/25/2012

ID: 8191363

SNOW v. MCDANIEL

DktEntry: 52-1

Page: 14 of 21

5763

that there “is no option here other than surgery for relief.”
Because, on this record, it is a controverted issue of fact, it
should be for the jury to decide whether any option other than
surgery was medically acceptable.
The defendants ignored outside expert advice, relying
solely on their own medical judgment for three years before
eventually approving surgery. They claim that the specialists
did not explicitly recommend “immediate” surgery. While a
medication-only course of treatment may have been medically
acceptable for a certain period of time, the question remains
whether it was medically unacceptable and subjectively reckless to ignore a “long term” recommendation for three years,
or to ignore “emergency” and “urgent” requests for more than
two years. These are jury questions.
The cases relied upon by the defendants are distinguishable. The plaintiff in Toguchi v. Chung, 391 F.3d 1051 (9th
Cir. 2004), argued that the defendant physician should not
have discontinued the use of a “superior” type of antipsychotic medication. Plaintiff ’s expert did not address that
specific claim, and the defendant submitted expert testimony
that her actions met the standard of care. Id. at 1055-56. Here,
conversely, specific statements by physicians in the record
raise triable issues of fact whether refusing to authorize surgery was medically unacceptable. And unlike in Sanchez v.
Vild, where only one prison doctor told the inmate that surgery would be necessary, here the consistent recommendation
by two outside specialists over the course of three years was
that Snow needed hip surgery to alleviate his severe pain and
mobility issues. See Sanchez, 891 F.2d at 242.
III
In his lawsuit, Snow named the following defendants, acting in their individual and official capacities: (a) E.K.
McDaniel, ESP Warden; (b) Adam Endel, ESP Associate
Warden of Programs; (c) Robert Bannister, M.D., NDOC

Case: 10-16951

5764

05/25/2012

ID: 8191363

DktEntry: 52-1

Page: 15 of 21

SNOW v. MCDANIEL

Medical Director; (d) Steven MacArthur, M.D., an ESP staff
physician; (e) Max Carter, a physician’s assistant employed
by NDOC; and (f) Debra Brooks, ESP Associate Warden of
Operations. Snow argues that summary judgment should have
been denied as to all of the defendants except Brooks, whom
he concedes is entitled to summary judgment.
A.

Warden McDaniel and Associate Warden Endel

Snow argues that the prison administrators are liable for the
medical staff’s Eighth Amendment violations because the
administrators were aware of Snow’s hip condition and of the
medical staff’s inadequate treatment and yet failed to act or
order changes to customs and policies. The defendants argue
that there is no evidence in the record that Warden McDaniel
or other administrators were personally involved in any of the
medical treatment decisions.
[9] “Under Section 1983, supervisory officials are not liable for actions of subordinates on any theory of vicarious liability.” Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir.
1989). A supervisor may be liable only if (1) he or she is personally involved in the constitutional deprivation, or (2) there
is “a sufficient causal connection between the supervisor’s
wrongful conduct and the constitutional violation.” Id. at 646.
A supervisor may be liable if the supervisor knew of the violations and failed to act to prevent them. Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989).
[10] During her deposition, a former NDOC nurse testified
that the warden and his assistants were aware of all grievances
regarding inappropriate medical treatment. The record shows
that Snow submitted several grievances about the denial of
the recommended hip surgery. Also, Warden McDaniel and
Associate Warden Endel personally reviewed the “no-kneel”
order—which explicitly states that Snow “needs hip
replacement”—and other accommodations made on behalf of
Snow for his hip condition. Through these orders and griev-

Case: 10-16951

05/25/2012

ID: 8191363

DktEntry: 52-1

SNOW v. MCDANIEL

Page: 16 of 21

5765

ances, Snow has sufficiently demonstrated that Warden
McDaniel and Associate Warden Endel were aware of his
serious hip condition. Because they were aware Snow needed
surgery and failed to act to prevent further harm, Warden
McDaniel and Associate Warden Endel are not entitled to
summary judgment.
Further, the former nurse also testified that Warden
McDaniel told medical staff: “If one of these [death row]
inmates gets deathly ill, don’t knock yourself out to save their
life. There’s plenty more to take their place.” Thus, there is
also a material issue of fact as to whether Warden McDaniel
failed to act to prevent the medically unacceptable care in
Snow’s case because of animus towards death row inmates.
B.

NDOC Medical Director Robert Bannister, M.D.

[11] Dr. Bannister was the head of the URP during the relevant period. Consequently, he was directly involved with the
decision to deny surgery recommended by specialists and
treating physicians in favor of a plan to treat Snow with medication alone. Because there is a material issue of fact as to
whether those decisions were deliberately indifferent to
Snow’s medical needs, Dr. Bannister is not entitled to summary judgment.
C.

Staff Physician Steven MacArthur, M.D.

[12] Snow argues that Dr. MacArthur is not entitled to
summary judgment because he refused to make an appointment in January 2006 for Snow to see an orthopedic surgeon
about his chronic severe hip pain. Snow also points to evidence in the record that suggests that Dr. McArthur disliked
him and purposefully refused to treat him. In order to prove
deliberate indifference through delay of medical care, then,
Snow must show that Dr. McArthur’s failure to schedule an
appointment for him led to further injury. See McGuckin, 974
F.2d at 1060. And “[a] finding that the defendant’s neglect of

Case: 10-16951

05/25/2012

5766

ID: 8191363

DktEntry: 52-1

Page: 17 of 21

SNOW v. MCDANIEL

a prisoner’s condition was an ‘isolated occurrence’ or an ‘isolated exception’ to the defendant’s overall treatment of the
prisoner ordinarily militates against a finding of deliberate
indifference.” Id. (internal citations removed). Although it is
unlikely that Dr. McArthur’s failure to schedule a consultation for Snow had a substantial effect on the timing of Snow’s
treatment, any delay in treatment that was potentially motivated by animus creates a material issue of fact for the jury.
We reverse the grant of summary judgment to Dr. MacArthur.
D.

Physician’s Assistant Max Carter

Snow alleged that he received his pain medications inconsistently and in doses that were not sufficient. In July 2007,
Snow sent a medical kite that asked: “If I can only have and
take Indocin for 10 days a month, are you prescribing something in its place to ease my pain the other 20 days?” In
response, Carter wrote: “[N]ope — gonna let you suffer until
you tell me its [sic] working or not — not much need in taking something that doesn’t work.” Dr. Bishop reviewed Carter’s response a week later and overruled it. Dr. Bishop wrote:
“Mr. Snow, I reviewed this kite response and totally disagree.
Pain meds are appropriate and I am ordering them today for
your needed well being.” Carter testified at deposition that his
“gonna let you suffer” comment to Snow was a “tongue-andcheek” attempt at humor.
[13] Carter’s “gonna let you suffer” statement is a textbook
example of the state of mind required to violate the Eighth
Amendment. Whether or not he made the statement in an
attempt at humor is an issue for the jury. We reverse the grant
of summary judgment to Carter.
IV
In entering judgment dismissing Snow’s lawsuit, the district court granted summary judgment on Counts I and III,
Snow’s two “custom and policy” claims against the State of

Case: 10-16951

05/25/2012

ID: 8191363

DktEntry: 52-1

SNOW v. MCDANIEL

Page: 18 of 21

5767

Nevada and the NDOC. The magistrate judge recommended
granting summary judgment on Count III, Snow’s claim for
damages. The magistrate judge concluded that Count I,
Snow’s claim for injunctive relief, was moot because the date
defendants had scheduled for Snow’s hip surgery had passed.
[14] The district court properly granted summary judgment
on Count III. That claim seeks damages from the State and the
NDOC for the custom or policy of refusing to provide certain
types of medical care to inmates. See Kentucky v. Graham,
473 U.S. 159, 165-67 (1985) (discussing official capacity
suits as a way to sue the governmental entity by alleging a
custom or policy claim). Because federal courts are barred by
the Eleventh Amendment from awarding damages against
state officials acting in their official capacities, this claim is
dismissed. See Bank of Lake Tahoe v. Bank of Am., 318 F.3d
914, 918 (9th Cir. 2003).
The district court improperly granted summary judgment
on Count I, Snow’s claim for injunctive relief. After the magistrate judge dismissed the claim as moot, Snow objected that
he had not yet received hip surgery and that it was no longer
scheduled or approved. Snow’s objection preserved this claim
for review by the district court, and created a factual dispute
as to whether the claim was moot.
Snow argues that he is entitled to injunctive relief based on
the defendants’ policy or custom of deliberate indifference to
the medical needs of inmates. Specifically, Snow alleges that
NDOC medical staff and prison administrators have a policy
or custom of acting without adequate medical justification and
in deliberate indifference to the serious medical needs of
inmates when they refuse to treat non-life-threatening medical
conditions, such as the need for joint replacement surgery. In
order to survive summary judgment on this claim, Snow must
come forward with evidence from which it can be
inferred that the defendant-officials were at the time

Case: 10-16951

5768

05/25/2012

ID: 8191363

DktEntry: 52-1

Page: 19 of 21

SNOW v. MCDANIEL

suit was filed, and are at the time of summary judgment, knowingly and unreasonably disregarding an
objectively intolerable risk of harm, and that they
will continue to do so.
Farmer, 511 U.S. at 846.
[15] On the record at summary judgment, the court could
infer that the defendants were acting with deliberate indifference and were likely to continue to refuse to authorize hip
surgery for Snow. See Gibson v. Cnty. of Washoe, 290 F.3d
1175, 1191 (9th Cir. 2002) (holding that summary judgment
is not appropriate if a jury could infer that policymakers knew
that their policies would pose a risk of substantial injury). We
conclude that summary judgment on this claim was premature. Snow’s claim for an injunction to start the pre-operative
process for hip surgery may proceed. When considering this
claim on remand, however, the district court may consider
supplemental medical records and filings by both parties. Farmer, 511 U.S. at 846 (“[T]he inmate may rely, in the district
court’s discretion, on developments that postdate the pleadings and pretrial motions, as the defendants may rely on such
developments to establish that the inmate is not entitled to an
injunction.”).
V
During this appeal, the defendants filed a motion to request
permission to supplement the record with medical records
generated, for the most part, after the defendants filed the
motion for summary judgment. At oral argument, plaintiff ’s
counsel stated that Snow had not had hip surgery because of
a cardiac issue. Counsel stated that the cardiac issue prevented
Snow from undergoing surgery until at least November 2011,
and potentially beyond that date.
On appeal of summary judgment, courts generally consider
only the record that was before the district court. United

Case: 10-16951

05/25/2012

ID: 8191363

SNOW v. MCDANIEL

DktEntry: 52-1

Page: 20 of 21

5769

States v. W.R. Grace, 504 F.3d 745, 766 (9th Cir. 2007); see
Lippi v. City Bank, 955 F.2d 599, 604 (9th Cir. 1992) (“Our
review is limited to the record presented to the district court
at the time of summary judgment.”). This rule has three
exceptions: “(1) to correct inadvertent omissions from the
record, (2) to take judicial notice, and (3) to exercise inherent
authority . . . in extraordinary cases. Considerations of institutional expertise and notice support our limitation of these
exceptions to unusual circumstances.” W.R. Grace, 504 F.3d
at 766 (citations and internal quotation marks removed).
The State concedes that the motion to supplement the
record does not fall within one of the three recognized exceptions. Instead, the State claims that the supplemental medical
records show good cause for delaying Snow’s hip replacement surgery. The State also claims that Snow’s need for
injunctive relief is moot because pre-operative procedures had
previously been initiated for a hip replacement in 2009.
[16] We deny the State’s motion to supplement the summary judgment record. The supplemental medical records do
not “establish beyond any doubt the proper resolution” of the
order granting summary judgment. Colbert v. Potter, 471 F.3d
158, 165-66 (D.C. Cir. 2006) (quoting CSX Transp., Inc. v.
Garden City, 235 F.3d 1325, 1330 (11th Cir. 2000)).
Although Snow’s cardiac issue could eventually affect his
claim for injunctive relief, the supplemental medical records
demonstrate only that Snow may not have been a candidate
for surgery until November 2011 because of a cardiac condition from some undetermined time. And the supplemental
medical records do not, on their own, demonstrate that Snow
could not have obtained surgery at an earlier date. In fact, if
the defendants are not able to prove that Snow was ineligible
for surgery in 2007 and 2008, Snow may be able to show that
the decision not to authorize surgery before the onset of the
cardiac problem has left him crippled for life. New evidence
should be presented to the district court on remand.

Case: 10-16951

5770

05/25/2012

ID: 8191363

DktEntry: 52-1

Page: 21 of 21

SNOW v. MCDANIEL

VI
The district court improperly concluded that there is a mere
disagreement of medical opinion in this case. By treating the
record here as a mere disagreement of opinion, the district
court did not identify the triable issues of fact whether the
defendants denied, delayed, or intentionally interfered with
appropriate medical treatment, or whether the defendants’
course of treatment was medically unacceptable. And because
Snow has not yet had hip surgery, and may or may not be eligible for surgery, his claim for injunctive relief is not moot
and should be addressed on remand.
For these reasons, we reverse: (1) the denial at summary
judgment of Snow’s claim for injunctive relief against the
defendants in their official capacities; and (2) the denial at
summary judgment of Snow’s claim for damages against the
defendants in their individual capacities, other than Brooks.
We affirm the grant of summary judgment to Brooks and the
denial at summary judgment of Snow’s claim for damages
against the defendants in their official capacities. We deny the
defendants’ motion to supplement the record on appeal, and
remand for further proceedings.
REVERSED in part, AFFIRMED in part, and
REMANDED for further proceedings consistent with this
opinion. Snow is awarded costs on appeal.