district court cannot disregard evidence at the summary judgment stage solely based on its self-serving nature, even if it is uncorroborated
How later courts described this case
- district court cannot disregard evidence at the summary judgment stage solely based on its self-serving nature, even if it is uncorroborated
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The opinion
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 03 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ANTHONY G. HERBERT, No. 14-35496
Plaintiff - Appellant, D.C. No. 2:13-cv-00640-RSL
v.
MEMORANDUM*
CARYN VERTUCCI, Public Health
Dentist; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
Anthony G. Herbert, a former King County pretrial detainee, appeals pro se
from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
deliberate indifference to his serious dental needs. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review de novo. Guatay Christian Fellowship v. County of
San Diego, 670 F.3d 957, 970 (9th Cir. 2011). We affirm in part, vacate in part,
and remand.
The district court properly granted summary judgment to defendant Dumas
because Herbert failed to raise a genuine dispute of material fact as to whether
Dumas was personally involved in any constitutional violation or whether his
conduct caused any such violation. See Starr v. Baca, 652 F.3d 1202, 1207-08 (9th
Cir. 2011) (requirements for establishing supervisory liability).
The district court properly granted summary judgment to defendants
Schaeffer, Derrah, Beckman, and Desai because Herbert failed to raise a genuine
dispute of material fact as to whether these defendants were deliberately indifferent
to Herbert’s serious dental needs. See Toguchi v. Chung, 391 F.3d 1051, 1057-60
(9th Cir. 2004) (a prison official is deliberately indifferent only if he or she knows
of and disregards an excessive risk to inmate health; neither a difference of opinion
concerning the course of treatment nor mere negligence in diagnosing or treating a
medical condition amounts to deliberate indifference); see also Clouthier v. County
of Contra Costa, 591 F.3d 1232, 1241 (9th Cir. 2010) (deliberate indifference
standard applies to pretrial detainees); Cousins v. Lockyer, 568 F.3d 1063, 1070
(9th Cir. 2009) (failure to follow internal prison policies does not rise to the level
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of a constitutional violation). To the extent that Herbert’s claim against defendant
Vertucci was premised on the failure to provide treatment in June 2012 or the
cancellation of a November 2012 appointment, the district court properly granted
summary judgment for the same reason.
With regard to Herbert’s claim that defendant Vertucci improperly failed to
extract multiple wisdom teeth in December 2011, however, Herbert raised a
genuine dispute of material fact as to whether Vertucci was deliberately indifferent
to his serious dental needs. Herbert submitted evidence showing that Vertucci
recognized the need to extract multiple teeth, but, pursuant to an informal policy,
refused to extract more than one tooth, causing Herbert to suffer pain. See Colwell
v. Bannister, 763 F.3d 1060, 1068-70 (9th Cir. 2014) (disregarding a serious
medical need because requested treatment conflicts with prison policy may
constitute deliberate indifference); see also Nigro v. Sears, Roebuck & Co., 784
F.3d 495, 497 (9th Cir. 2015) (district court cannot disregard evidence at the
summary judgment stage solely based on its self-serving nature, even if it is
uncorroborated); Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (verified
motions and pleadings are admissible to oppose summary judgment).
Accordingly, we vacate summary judgment on this claim and remand for further
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proceedings. We express no opinion on whether Vertucci is entitled to qualified
immunity on this claim.
Each party shall bear its own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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