Unpublished Disposition, 878 F.2d 1438 (9th Cir. 1985)

MEMORANDUM^** 

Douglas Dillman, an Arizona state prisoner, sued a doctor and several prison officials under 42 U.S.C. § 1983 claiming that their deliberate indifference to his serious medical needs violated his Eighth Amendment right to be free from cruel and unusual punishment. After a bench trial, Magistrate Mignella held that Dillman had not met his burden of proving deliberate indifference by the prison staff and entered judgment for the defendants. Dillman now appeals.

FACTS AND PRIOR PROCEEDINGS

In 1978, Dillman was involved in a motorcycle accident in which he broke his jawbone, right collarbone and both forearms. Since then Dillman has complained of pain in both wrists which is exacerbated by heavy use. In September 1984, Dillman entered Arizona State Prison Complex-Perryville. He was initially assigned to "full duty" status. On October 15, 1984, Dillman was examined by Dr. Smith, a physician with the prison's medical unit, and put on "light duty" status for the next two months.

From late May 1985 until he was transferred from Perryville on July 16, 1985, Dillman sought medical attention several times. Each time he complained of pain in his wrists and requested "light duty" slips to excuse him from doing any heavy manual work. Dr. Smith and the medical assistants who examined Dillman duly noted his complaints of pain and swelling. However, over the course of several examinations, Dr. Smith found no evidence of active inflammation, redness, swelling or tenderness.

In light of Dillman's past medical history, Dr. Smith concluded that Dillman had post-traumatic arthritis of the wrists and prescribed a commonly used anti-inflammatory drug. In addition, he placed him on "limited heavy duty" for a period of ten days in late May. In early July he issued another work restriction, limiting Dillman from doing any "extra-heavy lifting" for two months.

On December 3, 1985, Dillman brought suit under 42 U.S.C. § 1983 against Dr. Smith and officers Pangus, Cerino and Moore, alleging that their deliberate indifference to his medical needs violated the Eighth Amendment. The parties consented to proceed before a magistrate. At the end of a one day trial, Magistrate Mignella announced judgment for the defendants. After Dillman's post-trial motions for a new trial and to amend the judgment were denied, he filed a timely notice of appeal. We have jurisdiction over his appeal from the final judgment of the magistrate, 28 U.S.C. § 636(c) (3), Sec. 1291, and we affirm.

DISCUSSION

Dillman alleges that Dr. Smith violated his Eighth Amendment rights by refusing to issue "limited duty" slips to excuse him from heavy manual labor which involved extensive use of his arms and wrists. To establish a violation of the Eighth Amendment for inadequate medical care, a prisoner must show that defendants acted with "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). An inadvertent failure to provide adequate medical care, even though it may cause pain, cannot alone establish a constitutional violation. Rather, the defendant's indifference must be "substantial," going beyond mere negligence. See e.g., Wood v. Sunn, 865 F.2d 982, 988-89 (9th Cir. 1989) (indifference must be substantial to establish a constitutional deprivation); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) (same). Whether Dr. Smith's conduct constituted "deliberate indifference" to Dillman's medical needs is the sort of mixed question of law and fact implicating constitutional rights which should be reviewed de novo. United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

Dillman clearly had access to medical care. Soon after he arrived at Perryville, his wrists were examined by Dr. Smith and he was given a two-month light duty slip. Between May 24 and July 17, 1985, the time period in which the alleged violations occurred, Dillman went to the prison's medical unit at least seven times complaining of pain in his wrists. Each time he was seen by a medical assistant, and on three occasions he was referred to a medical doctor. During these visits, Dr. Smith examined him for objective manifestations of the pain he reported. Finding none, he nevertheless prescribed anti-inflammatory medication in light of Dillman's medical history of past trauma.

Based on his examinations and medical history, Dr. Smith felt that Dillman was capable of doing the work assigned to him. While acknowledging that Dillman did have some impairment which was probably a permanent condition, Dr. Smith felt that Dillman could do "anything [he] cared to do" if he conditioned himself and used medication to control any discomfort. He testified at trial that his goal in issuing restrictive duty slips was to "allow [inmates] to do everything they can do without hurting themselves." Despite his belief that Dillman was capable of working and the absence of any objective findings, Dr. Smith issued work limitations for Dillman on May 29 and July 5 based on his subjective complaints of pain.

That Dillman had a medical condition which might justify restrictions on his work is indisputable. The issue presented here is whether Dr. Smith's refusal to put him on limited duty in June or the more restricted duty status he requested in July was so "deliberately indifferent" to his medical needs as to violate the Constitution.

At trial, Dr. Stapler, another physician employed by the Arizona prisons, testified that the decision whether to place someone with Dillman's medical condition on limited duty status was a "judgment call." Where the medical community itself is divided about what treatment is most appropriate, it is difficult to make out a case of negligence, let alone a showing of gross indifference necessary for a finding of an Eighth Amendment violation. At most, Dillman can complain of a difference of opinion with Dr. Smith's choice of treatment, which alone is insufficient for Sec. 1983 liability. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981); see also Shields v. Kunkel, 442 F.2d 409, 410 (9th Cir. 1971).

2. Liability of Officers Pangus, Cerino and Moore

Dillman contends that defendants Pangus, Cerino and Moore, prison officials, also violated his Eighth Amendment rights by compelling him to work beyond his physical capacity. "Deliberate indifference to serious medical needs of prisoners" violates the Eighth Amendment, whether the indifference is manifested by prison doctors, guards or other personnel. Thus, non-medical prison officials who intentionally deny or delay access to medical care or interfere with prescribed treatments may also be liable under Sec. 1983. Estelle, 429 U.S. at 104-05.

The proof at trial was inadequate to support a finding that the officers violated Dillman's Eighth Amendment rights. Although he was assigned to work on the "gun-gang," which involved some heavy manual labor, there is no evidence that the defendant officers compelled him to work beyond any medically prescribed work limitations.

Moreover, the officers are not liable under Sec. 1983 unless their actions or failure to act caused a constitutional deprivation. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). If the prison guards were not authorized to allow work exemptions for medical reasons, then they cannot be held liable for merely enforcing the prison work rules consistent with their duties. In the absence of any specific evidence that the defendant officers interfered with Dillman's access to medical care or his medically prescribed treatment, the district court correctly concluded that they did not violate his constitutional rights.

Dillman asserts that because he brought this suit in forma pauperis he should have been provided with a copy of the trial transcript at the expense of the government in order to aid him in preparing objections to the defendants' proposed findings of fact and conclusions of law.

Trial transcripts may be furnished at the expense of the United States "to persons permitted to appeal in forma pauperis." 28 U.S.C. § 753(f). However, the district court "appears rather clearly to lack power to direct such a payment in the absence of an appeal," or before it has entered final judgment. Romero Barcelo v. Brown, 655 F.2d 458, 462 (2nd Cir. 1981). See also, Gill v. Neaves, 657 F. Supp. 1394, 1401 (W.D. Tex. 1987); Toliver v. Community Action Comm'n to Help the Economy, 613 F. Supp. 1070, 1072 (S.D.N.Y. 1985).

Dillman did receive a copy of the transcript after filing a notice of appeal, which he has included in his Excerpts of Record before this court. Although a transcript may have been of some use to him in preparing objections to the defendants' proposed findings, Congress does not appear to have authorized the courts to provide transcripts at government expense at that stage of the proceedings. We find no error in the magistrate's refusal of Dillman's request for a free transcript to prepare objections to the proposed findings.

Dillman also appeals the magistrate's denial of his motion for a new trial based on the absence of certain witnesses at trial. We review a denial of a motion for a new trial for an abuse of discretion. Robins v. Harum, 773 F.2d 1004, 1006 (9th Cir. 1985).

We agree with the magistrate that a new trial was not warranted because Dillman was aware several days before trial that the defense was limiting its witness list to two individuals. At that time Dillman made no objection, nor did he request the presence of any additional witnesses until the start of trial. Furthermore, Dillman has failed to show that he was prejudiced by the absence of any witness. He has not specified which individuals he believes were essential, nor how their testimony was material to his case.

Given Dillman's failure to request additional witnesses and the absence of any showing of prejudice, the magistrate did not abuse his discretion in denying the motion for a new trial.

CONCLUSION

For the foregoing reasons, the decision of the magistrate is AFFIRMED.