John Crowley v. Bruce Bannister

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN CROWLEY, No. 12-15804

Plaintiff-Appellant,

D.C. No.

v. 2:10-cv-00150-

KJD-VCF

ROBERT BANNISTER, DR.; DWIGHT

NEVEN, Warden; TAMIIA GRISHAM;

JANE BALAO-CLEDERA; DANIEL OPINION

SUSSMAN; PAT DILIDDO,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

Kent J. Dawson, District Judge, Presiding

Argued and Submitted

September 11, 2013—San Francisco, California

Filed October 30, 2013

Before: Arthur L. Alarcón and Marsha S. Berzon,

Circuit Judges, and Jack Zouhary, District Judge.*

Opinion by Judge Alarcón

*

The Honorable Jack Zouhary, District Judge for the U.S. District Court

for the Northern District of Ohio, sitting by designation.

2 CROWLEY V. BANNISTER

SUMMARY**

Prisoner Civil Rights

The panel affirmed in part and vacated in part the district

court’s summary judgment in an action brought under

42 U.S.C. § 1983 by a Nevada state prisoner alleging

deliberate indifference to his medical needs in the

administration of his medication.

The panel held that plaintiff failed to submit evidence

raising a genuine issue of material fact that his injury could

have been avoided had Dr. Bannister implemented a policy

allowing for the administration of three pill calls per day. The

district court therefore did not err in granting summary

judgment in favor of Dr. Bannister.

The panel affirmed the district court’s grant of summary

judgment in favor of Warden Neven and nurses Grisham,

Diliddo, and Balao-Cledera because Crowley expressly

waived his appeal against them in his reply brief.

The panel vacated the clerk’s entry of judgment in favor

of Dr. Sussman because the district court abused its discretion

in failing to comply with Rule 4(m). The panel held that

because the record did not reflect that the district court

provided the required Rule 4(m) notice prior to the clerk’s

entry of judgment in favor of Dr. Sussman, plaintiff was

“precluded from attempting to show good cause” or excusable

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CROWLEY V. BANNISTER 3

neglect for his failure to serve Dr. Sussman in a timely

manner.

The panel also vacated the district court’s decision

denying plaintiff’s request for leave to amend his second

amended complaint to name additional defendants and to

discover whether any delays on their part in providing

medical treatment caused or exacerbated his Lithium toxicity.

The panel remanded with instructions to comply with Rule

4(m) with respect to Dr. Sussman and to allow plaintiff leave

to amend his second amended complaint.

COUNSEL

Francis Gerald Fanning, Tempe, Arizona, for Plaintiff-

Appellant.

Clark G. Leslie, Senior Deputy Attorney General, Office of

the Nevada Attorney General, Appellate Division, Carson

City, Nevada, for Defendants-Appellees.

OPINION

ALARCÓN, Senior Circuit Judge:

John Crowley appeals from the district court’s decision

granting summary judgment and dismissing his pro se claim

that his civil rights were violated because the named

defendants, Dr. Robert Bannister, Dr. Daniel Sussman,

Dwight Neven, Pat Diliddo, Tamiia Grisham, and Jane Balao-

Cledera, were deliberately indifferent to his serious medical

4 CROWLEY V. BANNISTER

needs, in violation of the Eighth Amendment of the United

States Constitution. Crowley, now represented by counsel,

raises the following issues on appeal: (1) whether we have

jurisdiction to hear this appeal under 28 U.S.C. § 1291;

(2) whether the district court abused its discretion in failing to

comply with Rule 4(m) of the Federal Rules of Civil

Procedure in dismissing the complaint against Dr. Sussman;

(3) whether the district court erred in granting summary

judgment on the merits in favor of Dr. Bannister; (4) whether

the district court abused its discretion in denying his request

for leave to amend his second amended complaint; and

(5) whether the district court should have been required to

advise him of his rights under Rule 56(d) of the Federal Rules

of Civil Procedure.

We conclude that we have jurisdiction over this appeal.

We affirm the district court’s grant of summary judgment in

favor of Dr. Bannister because Crowley failed to submit

evidence raising a genuine issue of material fact regarding

whether Dr. Bannister was deliberately indifferent to his

serious medical needs. We also affirm the district court’s

grant of summary judgment in favor of Warden Neven and

nurses Grisham, Diliddo, and Balao-Cledera because Crowley

expressly waived his appeal against them in his reply brief.

We vacate the clerk’s entry of judgment in favor of Dr.

Sussman because the district court abused its discretion in

failing to comply with Rule 4(m). We also vacate the district

court’s decision denying Crowley’s request for leave to

amend his second amended complaint to name additional

defendants. We remand with instructions to comply with

Rule 4(m) with respect to Dr. Sussman and to allow Crowley

leave to amend his second amended complaint.

CROWLEY V. BANNISTER 5

I

Crowley, acting pro se, filed his initial complaint in the

district court on February 3, 2010. The district court

dismissed the complaint without prejudice following its initial

review under 28 U.S.C. § 1915A. Crowley then filed his first

amended complaint. Before any action was taken by the

defendants or the district court with respect to the first

amended complaint, he filed a second amended complaint, in

which he alleged a § 1983 action for deliberate indifference

of a serious medical need against Dr. Sussman; Dr. Bannister,

the director of the medical department at the Nevada

Department of Corrections’ (“NDOC”) High Desert State

Prison (“HDSP”); Warden Neven, the warden at HDSP; and

three nurses, Grisham, Diliddo, and Balao-Cledera.

In his second amended complaint, Crowley set forth the

following allegations: Nurse Grisham was the intake nurse

upon his arrival at HDSP. She informed him there were only

two pill calls at the facility and changed his Lithium

prescription from three doses to two without the prior

approval of a doctor. Dr. Sussman never met with him and

did not properly screen his medical file or review Nurse

Grisham’s alteration to his prescription. His cellmate

informed Nurse Diliddo of his “bizarre behavior” and

unresponsiveness on May 10, 2009, but she refused to treat

him. Nurse Balao-Cledera delayed six hours in providing him

medical care after his cellmate informed her of his behavior

on May 14, 2009, even though she knew he was suffering

from an overdose. Dr. Bannister and Warden Neven were

responsible for the operation of HDSP’s medical unit and

knew that the nurses regularly changed the patient’s

6 CROWLEY V. BANNISTER

prescriptions, even though they were not qualified to do so

and had not received prior approval from a doctor.

Crowley claimed that these alleged actions resulted in his

hospitalization and ongoing mental and physical side effects.

He also requested leave to amend the second amended

complaint “with names of Defendants when they are learned.”

On April 25, 2011, the district court issued a screening

order based on its initial review of the second amended

complaint under 28 U.S.C. § 1915A. It directed Nevada’s

Attorney General to advise the court within 21 days whether

she could accept service for the named defendants. With

respect to any defendant for whom she could not accept

service, the district court ordered her to “file, under seal, the

last known address(es) of those defendant(s);” and also

directed Crowley to “file a motion requesting the issuance of

a summons and specifying a full name and address” for such

defendant. It further ordered that “[s]ervice must be

completed within one hundred twenty (120) days from the

Attorney General’s service of a statement that she will not be

able to accept service for the defendant.”

Crowley’s copy of the screening order was returned to the

district court as undeliverable on May 2, 2011. The district

court’s docket indicates that the order was “not remailed,” as

“[n]o other address was available” for Crowley at that time.

Seven days later, on May 9, 2011, Crowley notified the

district court that he was now residing at the Lovelock

Correctional Center (“LCC”). The notice was dated May 6,

2011. The district court docket does not reflect that its

screening order was thereafter mailed to the LCC address.

CROWLEY V. BANNISTER 7

The Attorney General accepted service on behalf of all

defendants except for Dr. Sussman. She declined to accept

service on behalf of Dr. Sussman because “Daniel Sussman

is not an employee nor has he ever been an employee of the

NDOC.” The Attorney General did not provide Dr.

Sussman’s last known address.

The Attorney General filed a motion to dismiss the second

amended complaint and, in the alternative, a motion for

summary judgment on behalf of all defendants, except for Dr.

Sussman. In support of the motion, the Attorney General

provided Crowley’s medical records, as well as declarations

from defendants and other NDOC staff.

Crowley’s medical records reveal the following facts:

Crowley is an inmate who has a history of bipolar disorder,

delusions, Parkinson’s disease, and hypertension. During

Crowley’s initial imprisonment at LCC, he was administered

900 milligrams of Lithium in the morning and afternoon and

600 milligrams of Lithium in the evening. On April 16, 2009,

he was transferred to HDSP. During intake, Nurse Richard

Orden reviewed his chart and referred him to psychological

services. That same day, Dr. Sussman changed Crowley’s

prescription for Lithium to be administered twice daily in

1,200-milligram doses. Although the frequency of the doses

was altered from three to two doses per day, the total daily

amount of 2,400 milligrams stayed the same.

On May 16, 2009, a floor officer notified the medical staff

regarding Crowley’s unusual behavior. When Nurse Cordero

responded, she was advised by his cellmate that Crowley had

eaten soap the night before and had no appetite for food. She

noted that he was verbally responsive, but was also slow in

8 CROWLEY V. BANNISTER

his response, confused, staring blankly, jerking, and eating

tissue paper. She determined he should be admitted to the

infirmary and that his Lithium level should be checked.

Crowley was admitted to the infirmary by the telephone

order of Dr. Holmes. When admitted, he responded to

questions and obeyed simple commands, but was shaking.

His blood was drawn to test his Lithium level.

Crowley spent the following day in the infirmary and was

attended to by nurses Grisham and Balao-Cledera. Upon

examining Crowley on May 18, a doctor ordered that he be

transferred to the emergency room at Valley Hospital based

on a diagnosis of probable Lithium toxicity. At the hospital,

“he was treated for Lithium toxicity and dehydration

secondary most likely due to Lithium-induced Nephrogenic

Diabetes Insipidus, a concentrating defect which can produce

polyuria, an excessive or abnormally large production and/or

passage of urine.” He was discharged three weeks later.

Defendants argue that Warden Neven and Dr. Bannister

were not liable under § 1983 because their declarations and

Crowley’s medical records reflected that his medication was

changed by a doctor, not a nurse, and that, even if nurses were

allowed to change a patient’s medications at HDSP, neither

directed, approved, or knew of such a policy. Regarding

nurses Grisham, Diliddo, and Balao-Cledera, Defendants

argue that the medical records and other evidence established

that Crowley had incorrectly identified their roles in his

medical care and that the medical care they did provide

Crowley did not reflect willful indifference.

CROWLEY V. BANNISTER 9

The district court issued a minute order informing

Crowley of his rights under Rules 12 and 56 of the Federal

Rules of Civil Procedure, as required by this Court’s

decisions in Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.

1988), and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en

banc). The court’s order advised Crowley, inter alia, that “if

evidence is submitted with a motion to dismiss and

considered by the court, then the motion will be treated as a

motion for summary judgment” and that “if the court grants

summary judgment, then judgment may be entered against

[him] and this lawsuit will end without trial.” In addition, it

instructed Crowley that to oppose a motion for summary

judgment:

[He] must set out specific facts in the form of

admissible evidence (such as affidavits,

declarations, depositions, answers to

interrogatories, or properly authenticated

documents as provided in Rule 56(e)), that

contradict the facts shown in the defendant’s

declarations and documents and show that

there is a genuine issue of fact for trial.

Crowley opposed the motion for summary judgment,

contending that “[e]ven if his recollection of who did what on

what day is impaired, the facts remain that he suffered severe

lithium toxicity and he had to be hospitalized.” He did not

submit any evidence in support of his opposition. Instead, he

requested the opportunity to amend any issue the district court

deemed unclear or in dispute.

The district court granted summary judgment with respect

to all defendants, except for Dr. Sussman. It concluded that

10 CROWLEY V. BANNISTER

Crowley failed to produce any admissible evidence raising a

genuine issue of material fact that Dr. Bannister knew of the

alleged constitutional violations. Regarding his claims

against nurses Grisham, Diliddo, and Balao-Cledera, it

concluded that Crowley failed to raise a genuine issue of

material fact regarding their alleged liability because the

“uncontroverted evidence” and “undisputed facts” reflected

that he had improperly identified them in his second amended

complaint as the persons responsible for a deliberate

indifference to his serious medical needs, and that the level of

care they did provide him, as evidenced by the medical

records, “cannot state a claim for deliberate indifference to

[Crowley’s] serious medical needs.” With respect to all

defendants, except for Dr. Sussman who was not a party to

the motion, the district court also concluded, alternatively,

that these defendants were entitled to qualified immunity

because there was no clearly established law that would have

put them on notice that their conduct was unlawful.

The same day the district court issued its order granting

summary judgment in favor of Dr. Bannister, Warden Neven,

and nurses Diliddo, Grisham, and Balao-Cledera, the clerk

entered judgment also dismissing this action against Dr.

Sussman. Crowley timely appealed. In addition to filing his

notice of appeal, Crowley lodged a proposed third amended

complaint against Dr. Bannister, Dr. Holmes, Ms. Walsh, and

nurses Orden and Cordero.

II

Represented by counsel on appeal, Crowley argues that

the district court erred in granting summary judgment because

(1) “the evidence would allow a reasonable jury to conclude

CROWLEY V. BANNISTER 11

that [Dr. Sussman and Dr. Bannister] acted with deliberate

indifference to [his] medical needs,” (2) the district court

abused its discretion in denying his request for leave to amend

his second amended complaint, and (3) the district court

failed to advise him that he could request that it defer

considering defendants’ motions until after discovery. He

expressly waived any challenge to the district court’s grant of

summary judgment in favor of Warden Neven and nurses

Diliddo, Grisham, and Balao-Cledera in his reply brief.

A

Crowley filed a timely notice of appeal. We have

jurisdiction to review final decisions of the district court

under 28 U.S.C. § 1291. Neither party addressed our

jurisdiction in view of the fact that the district court granted

summary judgment to fewer than all the named defendants.

Nor did the parties address whether a district court is

empowered to enter judgment against a party that was never

served. Because we are required to raise issues concerning

our appellate jurisdiction sua sponte, United States ex rel.

Shutt v. Cmty. Home & Health Care Servs., Inc., 550 F.3d

764, 766 (9th Cir. 2008), we asked the parties to file

supplemental briefs regarding our jurisdiction to hear this

appeal. In response to our request, Crowley now asks that we

dismiss his appeal and remand because the district court’s

decision was not final for purposes of conferring jurisdiction

under 28 U.S.C. § 1291. We disagree.

“If an action is dismissed as to all of the defendants who

have been served and only unserved defendants remain, the

district court’s order may be considered final under Section

1291 for the purpose of perfecting an appeal.” Patchick v.

12 CROWLEY V. BANNISTER

Kensington Publ’g Corp., 743 F.2d 675, 677 (9th Cir. 1984)

(per curiam). This Court has recognized a limited exception

where “it is clear from the course of proceedings that further

adjudication is contemplated.” Disabled Rights Action

Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 872 (9th Cir.

2004).

In Patchick, 743 F.2d at 676, the district court granted a

dismissal requested by some, but not all defendants. Because

plaintiff had attempted to serve the remaining defendants and

had not conceded that service was improper, this Court

dismissed the appeal for lack of jurisdiction, holding that

“[t]he action cannot be final until the service dispute is

resolved by the district court in favor of [those] defendants or

until the action is dismissed as to those defendants.” Id. at

677.

The district court’s order granted summary judgment in

favor of the defendants who had been served, and the parties

do not dispute that the only remaining defendant, Dr.

Sussman, was never served. Nothing in the district court’s

order suggests that further adjudication was contemplated,

and the clerk entered judgment in favor of all defendants that

same day, finally disposing of the action against all

defendants. See Nat’l Distrib. Agency v. Nationwide Mut. Ins.

Co., 117 F.3d 432, 434 (9th Cir. 1997) (“Had the court

entered a separate final judgment subsequent to the dismissal

order, we would be confident the court intended no further

action in this case.”). Crowley’s subsequent lodging of a

proposed third amended complaint occurred at the same time

that he filed a notice of appeal; he did not name Dr. Sussman

as a defendant in that complaint. We are persuaded that we

have jurisdiction to review this appeal.

CROWLEY V. BANNISTER 13

B

Even though the district court’s grant of summary

judgment was a final order, we cannot reach the merits of

Crowley’s claims against Dr. Sussman, as he was never

served with the complaint and summons. “‘A federal court is

without personal jurisdiction over a defendant unless the

defendant has been served in accordance with Fed. R. Civ. P.

4.’” Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d

1132, 1135 (9th Cir. 2009) (quoting Benny v. Pipes, 799 F.2d

489, 492 (9th Cir. 1986)). “[W]hether personal jurisdiction

can be exercised is a question of law reviewable de novo

when the underlying facts are undisputed.” Id. (citing FDIC

v. British-Am. Ins. Co., 828 F.2d 1439, 1441 (9th Cir. 1987)).

“‘Rule 4 is a flexible rule that should be liberally

construed so long as a party receives sufficient notice of the

complaint.’” Benny, 799 F.2d at 492 (quoting United Food &

Commercial Workers Union v. Alpha Beta Co., 736 F.2d

1371, 1382 (9th Cir. 1984)). However, “[n]either actual

notice, nor simply naming the person in the caption of the

complaint, will subject defendants to personal jurisdiction if

service was not made in substantial compliance with Rule 4.”

Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)

(internal citations omitted).

The parties do not dispute that Crowley failed to serve Dr.

Sussman; therefore, the district court lacked personal

jurisdiction over Dr. Sussman and should have proceeded

under Rule 4(m) to dismiss the complaint against Dr.

Sussman without prejudice. Rule 4(m) provides that:

14 CROWLEY V. BANNISTER

If a defendant is not served within 120 days

after the complaint is filed, the court—on

motion or on its own after notice to the

plaintiff—must dismiss the action without

prejudice against that defendant or order that

service be made within a specified time. But

if the plaintiff shows good cause for the

failure, the court must extend the time for

service for an appropriate period.

Fed. R. Civ. P. 4(m) (emphasis added). “As indicated by the

plain language of Rule 4(m), notice to the plaintiff must be

given prior to sua sponte dismissal.” Thompson v.

Maldonado, 309 F.3d 107, 110 (2d Cir. 2002) (per curiam).

“[A] district court abuses its discretion when . . . it dismisses

a complaint sua sponte for lack of service without first giving

notice to the plaintiff and providing an opportunity for [him]

to show good cause for the failure to effect timely service.”

Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir.) (citing Famous

Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 115 (2d Cir.

2010)), cert. denied, 133 S. Ct. 655 (2012).

The Seventh Circuit analyzed Rule 4(m) in Brengettcy v.

Horton, 423 F.3d 674, 683 (7th Cir. 2005). In that matter, the

district court dismissed on its own motion plaintiff’s claims

against certain defendants for failure to perfect service

consistent with Rule 4. Id. On appeal, the Seventh Circuit

held that the district court erred because it did not “giv[e the

plaintiff] notice, an opportunity to show good cause, and an

opportunity to request an extension of time . . . .” Id. It

remanded to the district court with instructions to reinstate the

plaintiff’s suit allowing plaintiff “an opportunity to show

either that there was good cause to explain his earlier failure

CROWLEY V. BANNISTER 15

to effect service or that he is otherwise entitled to an

extension of time.” Id.

In its April 25, 2011, screening order, the district court

instructed Crowley to complete service within 120 days from

the Attorney General’s service of a statement that she would

not be able to accept service for a defendant. The parties

dispute whether Crowley received this order. The district

court’s docket indicates that the notice was “[r]eturned as

[u]ndeliverable” and was “not remailed,” as “[n]o other

address [was] available.” No further entries appear on the

docket to reflect whether the order was resent to Crowley

after he advised the district court of his new address the

following week.1

Because the record does not reflect that the district court

provided the required Rule 4(m) notice prior to the clerk’s

entry of judgment in favor of Dr. Sussman, plaintiff was

“precluded from attempting to show good cause” or excusable

neglect for his failure to serve Dr. Sussman in a timely

manner. Thompson, 309 F.3d at 110. This Court has

explained that

1

In a letter submitted after oral argument, the Attorney General

maintains that the order was resent to Crowley’s correct address on May

10, 2011, and points to an alleged “note” on the district court’s docket in

support of his contention. This note does not appear in the public docket;

nor does it appear in the record. Because this unsworn factual statement

is not properly before us, we cannot consider it. Barcamerica Int’l USA

Trust v. Tyfield Imps., Inc., 289 F.3d 589, 593 n.4 (9th Cir. 2002) (holding

that “arguments and statements of counsel ‘are not evidence . . . .’”

(quoting Smith v. Mack Trucks, 505 F.2d 1248, 1249 (9th Cir. 1974) (per

curiam))).

16 CROWLEY V. BANNISTER

Rule 4(m) provides two avenues for relief.

The first is mandatory: the district court must

extend time for service upon a showing of

good cause. The second is discretionary: if

good cause is not established, the district court

may extend time for service upon a showing

of excusable neglect. Exercise of discretion to

extend time to complete service is appropriate

when, for example, a statute-of-limitations bar

would operate to prevent re-filing of the

action.

Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009)

(internal citations omitted). The Attorney General concedes

Crowley may have had valid grounds for requesting an

extension of the time to serve Dr. Sussman under Rule 4(m)

because the statute of limitations “ran on or about May 18,

2011—the same day the [Notice of Acceptance of Service]

was sent to Crowley.” The district court abused its discretion

in failing to provide Crowley with the opportunity to show

good cause or excusable neglect. In addition, the clerk also

violated Rule 4(m) by entering judgment in favor of Dr.

Sussman when it should have dismissed the complaint against

him without prejudice.

In view of the district court’s failure to comply with Rule

4(m), we vacate the entry of judgment in favor of Dr.

Sussman and remand for further proceedings.

C

The district court granted summary judgment in favor of

Dr. Bannister because Crowley failed to produce evidence

CROWLEY V. BANNISTER 17

raising a genuine issue of material fact that Dr. Bannister

knew of the alleged constitutional violations. Crowley does

not contest this determination on appeal, but instead argues

that Dr. Bannister is liable as a supervisor because he was in

charge of implementing a drug distribution policy that

resulted in harm. He argues that Dr. Bannister “adhere[d] to

a ‘two pill call’ policy” despite the medical risks.

Even though the district court did not consider this theory

of liability in its order, “[w]e may affirm on any ground

present in the record.” O’Guinn v. Lovelock Corr. Ctr.,

502 F.3d 1056, 1059 (9th Cir. 2007) (citing In re Harbin,

486 F.3d 510, 520 (9th Cir. 2007)). “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.” Snow v. McDaniel, 681 F.3d 978, 985 (9th

Cir. 2012) (citing Lopez v. Smith, 203 F.3d 1122, 1131 (9th

Cir. 2000) (en banc)).

“‘Under Section 1983, supervisory officials are not liable

for actions of subordinates on any theory of vicarious

liability.’” Id. at 989 (quoting 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. (quoting Hansen, 885 F.2d at

646). Under the latter theory, “[s]upervisory liability exists

even without overt personal participation in the offensive act

if supervisory officials implement a policy so deficient that

the policy ‘itself is a repudiation of constitutional rights’ and

18 CROWLEY V. BANNISTER

is ‘the moving force of a constitutional violation.’” Hansen,

885 F.2d at 646 (quoting Thompkins v. Belt, 828 F.2d 298,

304 (5th Cir. 1987)).

Crowley failed to raise a genuine issue of material fact as

to causation. See OSU Student Alliance v. Ray, 699 F.3d

1053, 1076 (9th Cir. 2012) (“Advancing a policy that requires

subordinates to commit constitutional violations is always

enough for § 1983 liability . . . so long as the policy

proximately causes the harm—that is, so long as the

plaintiff’s constitutional injury in fact occurs pursuant to the

policy.”), cert. denied, No. 12-1296, 2013 WL 1808554 (Oct.

7, 2013). Dr. Bannister’s declaration states that the change in

dosage had either no effect or benefitted Crowley and that his

Lithium toxicity was attributable to other causes, likely

dehydration resulting from polyuria or his diet. Crowley

presented no evidence that the change from three to two daily

doses, without increasing the total amount of Lithium

prescribed, could have caused his Lithium toxicity.

In view of Dr. Bannister’s uncontradicted declaration,

Crowley has failed to raise a genuine issue of material fact

that his injury could have been avoided had Dr. Bannister

implemented a policy allowing for the administration of three

pill calls per day. The district court did not err in granting

summary judgment in favor of Dr. Bannister.

D

Crowley contends further that the district court should

have granted him leave to amend his second amended

complaint because his failure to identify the correct

defendants was understandable based on his incapacitation at

CROWLEY V. BANNISTER 19

the time of the incident. He requested leave to amend in his

second amended complaint and in his opposition to the

Attorney General’s motions.

Even though the district court did not expressly rule on

Crowley’s requests, its order granting summary judgment

“necessarily entailed a denial of the alternative request for

leave to amend and a determination . . . ‘that the pleading

could not possibly be cured by the allegation of other facts.’”

Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 983

(9th Cir. 2000) (quoting Lopez, 203 F.3d at 1127). We

review for abuse of discretion the denial of a motion to amend

the complaint. Hall v. City of Los Angeles, 697 F.3d 1059,

1072 (9th Cir. 2012).

“Federal Rule of Civil Procedure 15(a) provides that a

party may amend its pleading once as a matter of course

within certain time limits, or, in all other instances, with the

court’s leave.” Id. (citing Fed. R. Civ. P. 15(a)). “‘[L]eave to

amend should be granted if it appears at all possible that the

plaintiff can correct the defect.’” Lopez, 203 F.3d at 1130

(emphasis added) (quoting Balistreri v. Pacifica Police Dep’t,

901 F.2d 696, 701 (9th Cir. 1990)). “[T]he ‘rule favoring

liberality in amendments to pleadings is particularly important

for the pro se litigant. Presumably unskilled in the law, the

pro se litigant is far more prone to make errors in pleading

than the person who benefits from the representation of

counsel.’” Id. at 1131 (quoting Noll v. Carlson, 809 F.2d

1446, 1448 (9th Cir. 1987)).

A district court abuses its discretion by denying leave to

amend where the complaint’s deficiencies could be cured by

naming the correct defendant. See, e.g., id. at 1130–31

20 CROWLEY V. BANNISTER

(complaint named the wrong defendant); Lucas v. Dep’t of

Corr., 66 F.3d 245, 248–49 (9th Cir. 1995) (complaint failed

to name individual defendants). If the identity of any

defendant is unknown, “the plaintiff should be given an

opportunity through discovery to identify the unknown

defendants, unless it is clear that discovery would not uncover

the identities, or that the complaint would be dismissed on

other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th

Cir. 1980).

Crowley also alleged that his cellmate requested medical

assistance on his behalf on May 10, 2009, but that Nurse

Diliddo ignored the request and refused to treat him; and that

his cellmate again requested medical assistance several days

later on May 14, but that he had to wait six hours after Nurse

Balao-Cledera responded to the request before he was

admitted to the infirmary. Crowley misidentified nurses

Diliddo and Balao-Cledera as responsible for this conduct.

The medical records show that Nurse Cordero was the nurse

who responded to a cellmate’s request on May 16, the day he

was actually admitted to the infirmary. The present record

does not identify the individual who allegedly failed to

respond on May 10.

“A prison official violates the Eighth Amendment when

he acts with ‘deliberate indifference’ to the serious medical

needs of an inmate.” Snow, 681 F.3d at 985 (quoting Farmer

v. Brennan, 511 U.S. 825, 828 (1994)). “Indifference ‘may

appear when prison officials deny, delay or intentionally

interfere with medical treatment, or it may be shown by the

way in which prison officials provide medical care.’” Jett v.

Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting

McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992),

CROWLEY V. BANNISTER 21

overruled on other grounds by WMX Techs., Inc. v. Miller,

104 F.3d 1133 (9th Cir. 1997) (en banc)).

We conclude that the district court abused its discretion in

denying Crowley leave to amend his second amended

complaint to name the correct defendants and to discover

whether any delays on their part in providing medical

treatment caused or exacerbated his Lithium toxicity

constituting indifference to his medical needs.

E

The district court issued a notice to Crowley pursuant to

Klingele and Rand. Crowley concedes that the notice he

received complies with the law of this Circuit. He invites us,

however, to expand the required notice to advise pro se

litigants of their right under Rule 56(d) to seek additional time

to conduct discovery before facing a dispositive motion.

This Court adopted the notice requirement because “it

effectuates the purpose of the Federal Rules to eliminate

‘procedural booby traps’ which could prevent

‘unsophisticated litigants from ever having their day in

court.’” Rand, 154 F.3d at 958–59 (quoting Surowitz v.

Hilton Hotels Corp., 383 U.S. 363, 373 (1966)). Under the

law of this Circuit, where, as here, a plaintiff does not know

the identity of a defendant prior to the filing of a complaint,

he “should be given an opportunity through discovery to

identify the unknown defendants . . . .” Gillespie, 629 F.2d at

642. Accordingly, Crowley will have the opportunity on

remand to attempt to name the proper parties, after any

discovery opportunity the district court permits. We decline

22 CROWLEY V. BANNISTER

Crowley’s invitation to expand the required contents of the

notice to pro se litigants at this time.2

CONCLUSION

We vacate and remand the entry of judgment in favor of

Dr. Sussman because the district court failed to comply with

Rule 4(m), and we also vacate and remand its denial of

Crowley’s request for leave to amend. We affirm the district

court’s grant of summary judgment in favor of Dr. Bannister,

Warden Neven, and nurses Grisham, Diliddo, and Balao-

Cledera.

VACATED in part; AFFIRMED in part;

REMANDED.

EACH PARTY SHALL BEAR ITS OWN COSTS ON

APPEAL.

2

We decline at present to require an expansion of the Rand/Klingele

notice. However, district courts could be well served by refraining from

converting motions to dismiss into motions for summary judgment, or,

when doing so, advising pro se plaintiffs of their rights under Rule 56(d).