Lewis Stewart v. Romeo Aranas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEWIS STEWART, No. 20-15586

Plaintiff-Appellee,

D.C. No.

v. 3:17-cv-00132-

MMD-CLB

ROMEO ARANAS; JAMES COX;

FRANCISCO M. SANCHEZ; BRIAN E.

WILLIAMS, OPINION

Defendants-Appellants,

and

CHERYL BURSON; S.L. CLARK;

JAMES E. DZURENDA; ANGIE JONES;

SEAN SU; STATE OF NEVADA,

Defendants.

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted August 10, 2021

San Francisco, California

Filed May 4, 2022

2 STEWART V. ARANAS

Before: Eugene E. Siler, * Morgan Christen, and

Danielle J. Forrest, Circuit Judges.

Opinion by Judge Siler;

Concurrence by Judge Christen

SUMMARY **

Prisoner Civil Rights

The panel affirmed the district court’s order denying

qualified immunity to prison officials in an action brought

pursuant to 42 U.S.C. § 1983 alleging that defendants were

deliberately indifferent to plaintiff’s medical needs when,

despite his numerous complaints over a period of years and

a visibly deteriorating condition, they ignored his enlarged

prostate.

The panel determined that only examination of the

second prong of the qualified immunity analysis was

necessary—whether the right was clearly established at the

time of the violation—because doing so would not hamper

the development of precedent and both parties expressly

acknowledged that this case turned on the second prong.

The panel stated it was clearly established at the time of

plaintiff’s treatment that prison officials violate the

*

The Honorable Eugene E. Siler, United States Circuit Judge for the

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

**

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

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

STEWART V. ARANAS 3

constitution when they choose a medically unacceptable

course of treatment for the circumstances and a reasonable

jury could find that the prison officials here did just that. At

some point “wait and see” becomes deny and delay.

Plaintiff’s condition sharply deteriorated during his last few

years at Southern Desert Correctional Center. Yet prison

officials never deviated from their “wait and see” treatment

plan. As a result, plaintiff alleged he developed stage 3

kidney disease, erectile dysfunction due to the prostate tissue

cavity, urine build up, and some pain from a prostatectomy.

Plaintiff alleged more than mere disagreement with a

medical treatment plan and there was evidence that he

suffered from intractable pain over an approximately three-

year period that was interfering with his daily activities.

Concurring in the judgment, Judge Christen wrote

separately for two reasons: First, the record did not support

the majority’s factual predicate. The majority relied on the

magistrate judge’s recommendation to compile a factual

history, but Judge Christen could not find support in the

record for the recommendation’s recitation of the

background facts. Second, Judge Christen clarified that she

concurred in the result reached by the majority only because

defendants did not appeal the first prong of the qualified

immunity analysis and left unchallenged the magistrate

judge’s recommendation that a genuine issue existed

regarding whether defendants acted with deliberate

indifference. Judge Christen agreed with the majority that a

reasonable official with subjective awareness of a factual

predicate akin to the one reflected in the magistrate judge’s

report and recommendation would have violated plaintiff’s

constitutional rights by continuing a treatment plan of

“watchful waiting” after plaintiff’s condition became acute.

4 STEWART V. ARANAS

COUNSEL

Frank A. Toddre II (argued), Senior Deputy Attorney

General; D. Randall Gilmer, Chief Deputy Attorney

General; Aaron D. Ford, Attorney General; Office of the

Attorney General, Las Vegas, Nevada; for Defendants-

Appellants.

Andrew M. Lagomarsino (argued), Lagomarsino Law,

Henderson, Nevada, for Plaintiff-Appellee.

OPINION

SILER, Circuit Judge:

Mere disagreement with a medical treatment plan is not

deliberate indifference. But continuation of the same

treatment in the face of obvious failure is. Lewis Stewart

alleges just that: prison officials, despite numerous

complaints over a period of years and a visibly deteriorating

condition, ignored his enlarged prostate. As a result, he

claims that he has suffered irreversible injuries. Because it

was clearly established at the time of Stewart’s treatment

that prison officials violate the constitution when they

choose a medically unacceptable course of treatment for the

circumstances and a reasonable jury could find that the

prison officials here did just that, we affirm the district court.

I

While housed at the Southern Desert Correctional Center

(SDCC), Stewart began to feel “discomfort in his lower

abdominal and back area.” And so came the first of

numerous written requests to the prison staff for care. After

a long delay, Stewart was seen by Romeo Aranas and

STEWART V. ARANAS 5

Francisco Sanchez (among others). He complained to them

“that he was having difficulties urinating, that he had to sit

on the toilet to urinate, and that his short and irregular urine

flows were very painful.” Indeed, his pain was “so severe

that he had to curl into a fetal position to help alleviate the

pain.” In response, Aranas and Sanchez took Stewart’s

vitals and prodded both his abdomen and his kidney area.

Stewart was then given some generic medication and sent on

his way.

But neither the pain nor the inability to urinate stopped.

And by sometime between 2013 and 2015, Stewart’s urethra,

testicles, and abdominal areas grew inflamed. More

complaints to Aranas and Sanchez followed but nothing

changed.

Subsequently in 2015, Stewart was transferred to Warm

Springs Correctional Center (WSCC). The ride to his new

facility lasted eight uncomfortable hours and he “arrived

pale, flushed, sweating and unbalanced.” Upon first look,

the WSCC medical staff initiated “immediate emergency

care.”

Dr. Marsha Johns examined Stewart’s abdominal cavity

and ordered an immediate catheterization “to drain Stewart’s

urinary retention.” That process drained more than six liters

or fourteen pounds of fluid from his bladder and urinary

system. Stewart was next sent to the Regional Medical

Facility at the Northern Nevada Correctional Facility

(NNCF). There, he was seen by three urologists, including

two outside specialists, and underwent surgery for a

transurethral resection of the prostate. Despite his treatment

at SDCC and NNCF, Stewart now has several long-term

issues, including stage 3 kidney disease, erectile dysfunction

due to the prostate tissue cavity, urine build up, and some

pain from the prostatectomy.

6 STEWART V. ARANAS

Afterwards, Stewart filed grievances with SDCC related

to his care. Those grievances were denied. Stewart then

brought multiple claims under Section 1983 against

numerous prison officials. After the district court screened

Stewart’s complaint, he was left with two claims of

deliberate indifference to serious medical needs. The

remaining officials claimed that they were entitled to

qualified immunity and moved for summary judgment. The

district court disagreed.

II

We have jurisdiction under 28 U.S.C. § 1291 and review

whether the prison officials are entitled to qualified

immunity de novo. Hines v. Youseff, 914 F.3d 1218, 1227

(9th Cir. 2019).

III

Stewart alleges that the prison officials acted with

“deliberate indifference” to his “serious medical needs.”

Those same officials respond that they are entitled to

qualified immunity. So, to prevail, Stewart must show that:

(1) the officials violated a constitutional right, and (2) the

right was clearly established at the time of the violation.

Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016).

Stewart can succeed under Hamby.

Constitutional right. Although Hamby puts forward a

two-prong test that first asks whether officials violated a

constitutional right, we need not analyze both prongs. Both

parties expressly acknowledge that this case turns on the

second prong of Hamby, not the first, so only examination of

the second is necessary. It is recognized that a qualified

immunity analysis may be confined to only the second prong

of Hamby when doing so will not hamper the development

STEWART V. ARANAS 7

of precedent. Horton by Horton v. City of Santa Maria,

915 F.3d 592, 602 (9th Cir. 2019). Such is the case here.

Clearly established. “To be clearly established, a right

must be sufficiently clear that every reasonable official

would have understood that what he is doing violates that

right.” Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015) (per

curiam). A case directly on point is unnecessary but the

constitutional question must be “beyond debate.” Ashcroft

v. Al-Kidd, 563 U.S. 731 (2011).

Here, the prison officials claim that no clearly

established law barred their “wait and see” treatment plan

for Stewart’s enlarged prostate. It is true that we have not

found a case on all fours with the factual context presented

here. But it has been established that “deny[ing], delay[ing],

or intentionally interfer[ing] with medical treatment” can

violate the constitution. Colwell v. Bannister, 763 F.3d

1060, 1066 (9th Cir. 2014). At some point “wait and see”

becomes deny and delay. Stewart’s condition sharply

deteriorated during his last few years at SDCC. Yet prison

officials never deviated from their “wait and see” treatment

plan. As a result, Stewart alleges he developed stage 3

kidney disease, erectile dysfunction due to the prostate tissue

cavity, urine build up, and some pain from the

prostatectomy. A delay in treatment can violate the

constitution if it results in injury. See Shapley v. Nev. Bd. of

State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)

(requiring that any treatment delays cause harm).

Besides, the prison officials knew that they violate the

constitution when they persist in a treatment known to be

ineffective. See Snow v. McDaniel, 681 F.3d 978, 988 (9th

Cir. 2012). Most objective evidence pointed toward the long-

term failure of the “wait and see” treatment plan. See

8 STEWART V. ARANAS

Sandoval v. Cnty. Of San Diego, 985 F.3d 657, 680 (9th Cir.

2021).

Hamby does not dictate a different result. See 821 F.3d

at 1094. To the contrary, Hamby simply reiterates two rules

for medical deliberate indifference claims: (1) we must

consider the most similar cases, and (2) mere disagreement

with a treatment plan does not constitute deliberate

indifference. Id. And Stewart alleges more than mere

disagreement. Unlike Hamby, there was not an agreement

by all the doctors (including Hamby’s expert) that watchful

waiting was reasonable. See Hamby, 821 F.3d at 1093–94.

And, unlike Hamby, there is evidence that Stewart was

suffering from intractable pain over an approximately three-

year period that was interfering with his daily activities. Id.

Therefore, we conclude that the prison officials are not

entitled to qualified immunity.

AFFIRMED.

CHRISTEN, Circuit Judge, concurring in the judgment:

I concur with my colleagues’ decision to affirm the

district court’s denial of qualified immunity, but write

separately for two reasons: (1) by my read, the record does

not support the majority’s factual predicate; and (2) to clarify

that I concur in the result reached by the majority only

because defendants did not appeal the first prong of the

qualified immunity analysis.

Lewis Stewart was treated for an enlarged prostate for

several years while he was in the custody of the Nevada

Department of Corrections (“NDOC”). His complaint’s

allegations are short on details, but it is clear that it was

STEWART V. ARANAS 9

between 2013 and 2015 that his symptoms began to worsen.

During this period, records confirm that NDOC staff

examined Stewart several times and tried various treatments.

The records also show that NDOC discontinued some

treatment at Stewart’s request.

Stewart was transferred from Southern Desert

Correctional Center (“SDCC”) to Warm Springs

Correctional Center (“WSCC”) in August of 2015 via an

eight-hour bus ride. His complaint asserts that, upon his

arrival at WSCC, he immediately complained of acute pain,

told the personnel at WSCC that he could not urinate, and

that more than six liters of fluid were drained from his

system. 1 Stewart’s complaint also alleges that upon his

arrival, a provider at WSCC exclaimed, “How long has he

been like this?” But neither Stewart’s complaint nor his

opposition to defendants’ summary judgment motion ever

answered the provider’s question. Instead, we are left to

guess how long Stewart’s condition was acute and he offers

only the conclusory assertion that the defendants were

subjectively aware of, and deliberately indifferent to, his

serious medical condition. A separate problem is presented

by the fact that nothing in the record differentiates between

the various defendants’ actions. This omission is

particularly significant because some of the defendants were

not care providers.

Stewart’s complaint alleges that he complained about

urination problems and associated pain for years while

1

Stewart does not identify the date of his transfer, nor do the records

match his allegation that he was catheterized immediately upon arrival

at WSCC, but the records are unclear and we view contested facts in the

light most favorable to Stewart in this interlocutory appeal. See Plumhoff

v. Rickard, 572 U.S. 765, 768 (2014) (“[W]e view the facts in the light

most favorable to the nonmoving party.”).

10 STEWART V. ARANAS

incarcerated at SDCC, and that he did not receive adequate

treatment. But the medical records do not support a claim of

deliberate indifference. Instead, the records show that

between February 20, 2013 and October 15, 2014, Stewart

was taking Flomax, he thought his symptoms were improved

with the drug, and he wanted to continue taking it. In

December of 2014, a medical note shows Stewart was “still

on Lasix,” a diuretic, that he was urinating more frequently,

and that he wanted to discontinue taking this medication. In

May, Stewart failed to appear for a scheduled medical

appointment. He attended two appointments in July, but the

notes from these visits are indecipherable. Stewart remained

at SDCC for the first eight months of 2015 and then

transferred to WSCC. At some point during that eight-

month period, his prostate condition became much more

serious.

Stewart’s complaint alleges that defendants Aranas,

Clark, Jones, Sanchez, and Su saw him during the operative

time frame but did not provide treatment. The claims against

Clark, Jones and Su were dismissed for failure of service.

The complaint also alleges that Stewart complained about

his medical condition to defendants Burson, Cox, and

Williams and that they did not do anything, but the claims

against Burson were also dismissed due to failure of

service. 2 James Cox, the Director of the Nevada Department

of Corrections, and Brian Williams, the Warden at the

Southern Desert Correctional Center, remain as defendants.

Stewart’s complaint does not explain whether he

2

The district court dismissed plaintiff’s claims against Burson,

Jones, Su, and Clark because plaintiff did not provide proof of service.

Only Aranas, Sanchez, Cox, and Williams remain as defendants.

STEWART V. ARANAS 11

communicated with these defendants in 2015, or what he

told them about his medical condition.

The majority relies on the R&R to compile a factual

history, but I cannot find support in the record for the R&R’s

recitation of the background facts. Citing the R&R, my

colleagues describe Stewart’s “numerous written requests to

the prison staff for care” and a “long delay” before Stewart

received attention when his symptoms first began in 2002.

The R&R also asserts that “Stewart continued to complain

to . . . defendants about the severity of his pains and the

inability to urinate regularly without discomfort” in the

following months, and that “[b]etween 2014 and 2015,

Stewart complained to defendants through kites and visits

about his urination problems and slow, short flows.” Despite

the description in the R&R, the scant records before us do

not show that Stewart put defendants on notice that his

condition had worsened, and the other allegations in

Stewart’s complaint do not meet the standard established by

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Even so, defendants did not object to the magistrate

judge’s recommendation that a genuine issue exists

regarding whether defendants acted with deliberate

indifference. Defendants only objected to the magistrate

judge’s recommendation that existing precedent put

defendants on notice that their treatment of Stewart may

have been unconstitutional, and they only appealed the

“clearly established” prong of the qualified immunity

analysis. “We review only issues which are argued

specifically and distinctly in a party’s opening brief.”

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). I agree

with the majority that a reasonable official with subjective

awareness of a factual predicate akin to the one reflected in

the R&R would have violated Stewart’s constitutional rights

12 STEWART V. ARANAS

by continuing a treatment plan of “watchful waiting” after

Stewart’s condition became acute. And because defendants

left unchallenged the suggestion that Stewart adequately

alleged the defendants acted with deliberate indifference, I

join the majority in affirming the district court’s denial of

qualified immunity.