Unpublished Disposition, 914 F.2d 1496 (9th Cir. 1986)

MEMORANDUM^** 

Appellant Thompson failed to carry the burden required of him to avoid summary judgment on his claim that the appellees showed deliberate indifference to his serious medical needs by taking away his crutches and back brace. The appellees' medical affidavit does not sufficiently address Thompson's contention that he experienced significant delays in receiving prescribed pain medication to justify the district court's grant of summary judgment on that issue, however. We therefore AFFIRM IN PART, REVERSE IN PART, and remand for further proceedings.

BACKGROUND

Appellant Lester Eugene Thompson is an inmate confined to the custody of the Arizona Department of Corrections (DOC). Thompson alleges that, while at the Florence South Unit, doctors from Maricopa County Hospital examined his back and found serious medical problems that resulted in the prescribing of a wheelchair or crutches, a back brace, and medication consisting of a muscle relaxant (Norflex) and pain killers (Motrin).

Thompson claims that shortly upon arrival at the Perryville Santa Cruz Unit on July 28, 1986, a Dr. Smith told him he did not need the crutches and took them from him, and offered him a cane instead. He alleges that he was able to obtain a different pair from another inmate, but that three guards entered his cell and removed that pair as well. He also claims that on more than one occassion during his stay at Perryville he was denied his prescribed pain medication for more than two weeks. Thompson filed a civil rights complaint against various medical and nonmedical officials at Perryville.

In its papers moving for summary judgment, the appellees included an affidavit from a Dr. Patricia Stapler. Dr. Stapler declared that she was one of Thompson's treating physicians and that he received adequate medical care from DOC. She also stated that his medical condition does not require the use of a back brace or crutches.

Appellant did not file any opposing affidavits in response to appellees motion for summary judgment. Instead, he argued that Dr. Stapler's affidavit failed to address his allegations. The district court entered summary judgment against Thompson. It held that in order for Thompson to succeed in his suit, he would have had to provide medical testimony. Therefore, his failure to counter appellees' expert medical testimony with expert testimony or medical evidence of his own prevented him from carrying his burden of opposing the summary judgment motion. Thompson timely appealed.

DISCUSSION

The panel reviews orders granting summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989) cert. denied, 110 S. Ct. 3217 (1990). This standard applies to prisoner claims of deliberate indifference to their serious medical needs. Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989).

An inmate's complaint of inadequate medical care amounts to a constitutional violation if the inmate alleges "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292, 50 L. Ed. 2d 851 (1976). "Prison officials are deliberately indifferent to a prisoner's serious medical needs when they 'deny, delay or intentionally interfere with medical treatment.' Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)." Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Any delay in treatment is only actionable if it harmed the inmate. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam).

i. Crutches and Back Brace

The medical testimony of Dr. Patricia Stapler stated that Thompson's medical condition did not require the use of crutches or a back brace. Thompson alleged that both the crutches and the back brace had been prescribed by a physician prior to his transfer to Perryville, yet provided no evidence to support his assertion. Central to this allegation of deliberate indifference is that Thompson needed the crutches and back brace. His statements to that effect and unsupported assertions that the crutches and back brace were in fact medically prescribed would not have overcome sworn medical testimony to the contrary at trial.

The Supreme Court "has made clear that if the non-moving party will bear the burden of proof at trial as to an element essential to its case, and that party fails to make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element, then summary judgment is appropriate." California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) cert. denied, 484 U.S. 1006 (1988). Thus, with respect to the taking of appellant's crutches and back brace, the district court was correct to hold that Thompson failed to meet the burden required of him at the summary judgment stage. In order to succeed against a medical opinion that the crutches and brace were not necessary, plaintiff would have had to provide some medical evidence that they were.

ii. Delays in Obtaining Pain Medication

Thompson's claim that he was unable to obtain prescribed pain medication for extended periods is different, however, because Dr. Stapler nowhere in her affidavit opines that Thompson did not need pain medication, or that it was never prescribed, or that he received his medication in adequate intervals. Thus, there is not yet any medical testimony concerning medication that required Thompson to come forth with medical evidence of his own.

In accord with our conclusion are Gunter v. Arizona, 153 Ariz. 386, 736 P.2d 1198 (Ariz.App.1987), and Zuck v. Arizona, 159 Ariz. 37, 764 P.2d 772 (Ariz.App.1988). Both cases involved Dr. Stapler affidavits, and both found them inadequate to support summary judgment with respect to delays in obtaining prescribed medication. Indeed, Gunter is very similar to this case in that the court upheld part of the grant of summary judgment because plaintiff failed to present expert medical testimony, but reversed as to the medication delay claim. The Arizona court held:

Much of [appellant's diary] details complaints about [his] treatment.... Dr. Stapler's affidavit refutes these contentions. The appellant does, however, describe a number of incidents where the prison pharmacy sent him less medication, or a weaker strength of medication, than that which had been prescribed. There is nothing in Dr. Stapler's affidavit or in the record to suggest that Dr. Stapler knew anything about [these complaints]. If, indeed, she was unaware that prescribed medication was not reaching the appellant, then her affidavit does not specifically meet his contention.

Gunter, 153 Ariz. at 387, 736 P.2d at 1199.

Zuck rules in the same manner: "Dr. Stapler's affidavit in support of summary judgment, much like the one she filed in Gunter, does not address plaintiff's complaints that he received his prescribed medication only after extensive delays that affected the quality of his treatment." Zuck, 159 Ariz. at 42, 764 P.2d at 777. We reverse part of the summary judgment order in this case for the same reason. The parties shall bear their own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.