Unpublished Disposition, 912 F.2d 468 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Lewis L. Flannery, who is currently incarcerated and is proceeding in pro per, filed a complaint under 42 U.S.C. section 1983 against various prison officials alleging deliberate indifference to his medical needs in violation of the eighth amendment. The case went to trial in May 1989. After the defense had rested, the district court entered a directed verdict in favor of all four defendants, finding that no reasonable jury could hold in plaintiff's favor. Flannery appeals from this judgment. We affirm.

* Appellant Flannery has suffered since the 1970s from a hydrocele of the left testicle. In December 1983, he was examined by Dr. Vance Yung, a physician at the Washington State Correctional Center (WCC) where Flannery was being temporarily housed. At this time, the doctor prescribed a pain killer to ease appellant's discomfort. Approximately two weeks later, Yung saw appellant again and determined that surgery was appropriate but could wait until Flannery was moved to his permanent facility.

On January 18, 1984, Flannery was transferred to the Washington State Penitentiary (WSP) in Walla Walla. Soon thereafter he was seen by a physician's assistant who recommended a surgical consultation to determine whether an operation would be necessary to relieve the hydrocele. The following month, Flannery saw a surgical consultant, Dr. Saw, who recommended surgery but felt that an emergency procedure was not necessary since the former was neither suffering from a secondary infection nor appeared to be in extreme pain. [TR 194-95] On March 15, 1984, Dr. Saw operated on appellant's left hydrocele.¹ 

Flannery subsequently filed suit in federal district court in March 1986 against a number of prison officials alleging deliberate indifference to his medical needs in violation of the eighth amendment and 42 U.S.C. section 1983. Several of the named defendants were dismissed, and the case was tried before a jury on May 16, 1989 against the remaining four: Yung, WCC Superintendent Kurt Peterson, WSP Health Care Manager Ed Allen, and former WSP Superintendent Lawrence Kincheloe. After the defense had rested, the court orally entered a directed verdict finding that "reasonable people could [not] conclude that any of these defendants reflected deliberate indifference to any serious medical needs." [TR 244] Flannery appeals from the judgment dismissing his complaint.² 

II

We review the propriety of a directed verdict under the same standard as that applied by the district court. Peterson v. Kennedy, 771 F.2d 1244, 1252, 1256 (9th Cir. 1985). A directed verdict is proper only when the evidence permits the trier of fact to draw only one reasonable conclusion. Id. at 1256. All evidence is considered in the light most favorable to the nonmoving party and all reasonable inferences are drawn in his favor. Id.

III

To make out an eighth amendment violation, Flannery must show that prison officials were deliberately indifferent to his "serious medical needs." Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). In meeting this burden, he must demonstrate that the officials' alleged misconduct constitutes " 'unnecessary and wanton infliction of pain.' " Anthony v. Dowdle, 853 F.2d 741, 742 (9th Cir. 1988) (quoting Estelle, 429 U.S. at 104)). Mere delay of surgery is insufficient in this regard unless the delay is shown to be harmful. Shapley v. Nevada Bd. of Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). A showing that appellees were merely negligent in treating appellant's condition is likewise insufficient for eighth amendment purposes. Anthony, 853 F.2d at 743; Hutchinson, 838 F.2d at 394.

Thus, to make out a valid claim of deliberate indifference, appellant must establish as a threshold matter that the 4-month delay in operating on his left hydrocele caused unnecessary and wanton infliction of pain or was otherwise harmful. As Flannery presented no evidence of any physical injury which resulted from the delay, the sole issue on appeal is whether there was enough evidence in the record from which a reasonable jury could have concluded that the appellees' conduct rose to the level of unnecessary and wanton infliction of pain.

IV

Appellee Yung testified that since he did not believe that Flannery's hydrocele was an emergent situation "the need for a surgical procedure [c]ould be assessed when [appellant] reached his permanent facility." [TR 143] This determination was based in part on "the amount of pain the patient was having" which "did not seem to require medication beyond perhaps Tylenol or aspirin. Had the pain been at a level where it would have required opiates, codeine, morphine and so forth," the doctor continued, "it would have been a much more serious matter." [TR 146]

Significantly, Flannery did not testify that he notified Yung that he was in extreme pain such as would suggest the need for immediate surgery. Likewise, appellant did not present evidence indicating that a hydrocelec condition such as his presented an emergent situation requiring expedited surgical attention. Flannery's medical expert, Dr. Mark David Kiviat, indicated only that pain might suggest the need for surgery; [Deposition at 29]³  he nowhere refuted Yung's contention that the procedure is elective nor did he testify that pain resulted from every hydrocele. On the contrary, Kiviat responded negatively when asked if "pain and discomfort [were] associated with every hydrocele." [Id. at 27] Moreover, Dr. Saw noted that "pain is very seldom a major complaint of patients presenting with hydrocele" and that, at any rate, the presence of pain "is certainly not an emergent type of situation where you would have to perform surgery right away." [TR 194-95]

In light of the foregoing, we agree with the district court that no reasonable jury could have found that Yung's failure to order immediate surgery constituted deliberate indifference to appellant's medical needs.

V

Appellee Ed Allen, former Health Care Manager at WSP, was responsible for approving appellant's surgery which he did some six days after the request was made by Dr. Saw. Six days later, on February 29, 1984, Allen approved Flannery's transfer to Walla Walla General Hospital for the surgery which was ultimately conducted on March 15.

Appellee Lawrence Kincheloe, former WSP Superintendent, approved on February 29, 1984 the Health Department's request that Flannery be allowed to leave the penitentiary to have surgery in Walla Walla on March 15.

On the basis of this evidence, appellant claims that Allen and Kicheloe conspired to deprive him of necessary medical care. It is unnecessary to reach the merits of this claim as appellant has failed to make a threshold showing of an agreement between the two administrators to violate his constitutional rights. Ward v. EEOC, 719 F.2d 311, 314 (9th Cir. 1983).

Flannery also contends that Kincheloe unlawfully refused to provide medical authorization for "required and necessary medical care" (First Amended Complaint at XII, p 2) in violation of the eighth amendment. Even assuming arguendo that appellant was deprived of necessary treatment, he has failed to introduce any evidence showing how Kincheloe participated personally in these deprivations. See Wood v. Sunn, 852 F.2d 1205, 1212 (9th Cir. 1988) (to prevail in section 1983 action, plaintiff must show that defendant played personal role in constitutional deprivation). Thus, since Kincheloe cannot be held vicariously liable for the conduct of WSP medical personnel, see Hunt v. Dental Dept., 865 F.2d 198, 200 (9th Cir. 1989), the district court was correct in directing a verdict in his favor.

VI

Finally, we find there to be no evidence that WCC Superintendent Kurt Peterson was deliberately indifferent to appellant's medical needs. The only evidence suggesting that Peterson had any knowledge of appellant's hydrocele was an emergency grievance filed two weeks before Flannery's transfer to WSP, but appellant has produced no documentation proving that Peterson ever received or reviewed the grievance. Even if he had considered the grievance, the failure to act upon it cannot satisfy Flannery's evidentiary burden since the complained of treatment by Dr. Yung was not itself sufficient to constitute a cause of action under the eighth amendment.

VII

For the foregoing reasons, we find that no reasonable jury could have found appellees Yung, Kincheloe, Allen and Peterson liable in this case. Accordingly, the district was correct in entering a directed verdict against the appellant as to all claims.

AFFIRMED.