Unpublished Disposition, 927 F.2d 610 (9th Cir. 1989)

MEMORANDUM^** 

Charles J. Oltarzewski, Jr., appearing pro se, appeals from the district court's grant of summary judgment in favor of the defendants in Oltarzewski's action filed under Title 42 U.S.C. § 1983. We affirm the district court's decision.

FACTS

Oltarzewski filed suit against Frank R. Waelde, Jail Commander, Sheriff Agnos, Maricopa County Sheriff, Corporal Conn, Drs. Mui and Garcia, and R.N. Ana Himmelberger, as well as an "Unknown M.D." and "Unknown Defendants", alleging that while he was incarcerated in the Maricopa County Jail they violated his constitutional rights by subjecting him to cruel and unusual punishment. He alleges that defendants Mui, Garcia, and Himmelberger, as well as the "Unknown M.D." and "Unknown Defendants", were deliberately indifferent to his serious medical needs in that they refused to give him the Cortasporin brand of ear drops for infections in his ears, causing him to suffer "slight" hearing loss in one ear.¹ 

The district court dismissed the "Unknown M.D." and "Unknown Defendants" from the lawsuit and granted the remaining defendants summary judgment with regard to Oltarzewski's claims of deliberate indifference to serious medical needs.

Oltarzewski raises three claims on appeal. First, he asserts that the district court erred in granting summary judgment to the remaining defendants. Second, he contends that the district court improperly dismissed the "Unknown M.D." and "Unknown Defendants". Third, he maintains that the district court should have allowed him to amend his complaint after granting summary judgment to defendants Mui, Garcia and Himmelberger.

ANALYSIS

I. Was Summary Judgment for Defendants Mui, Garcia, and Himmelberger Appropriate?

A. Standard of Review.

We review a district court's grant of summary judgment de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629 (9th Cir. 1987). Viewing the evidence in the light most favorable to the non-moving party, Oltarzewski, we must determine whether there are any genuine issues of material fact, and whether the district court properly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). The party opposing summary judgment may not rest on conclusory allegations, but must set forth specific facts showing there is a genuine issue for trial. Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir. 1978) (involving pro se litigant), cert denied 442 U.S. 941, 99 S. Ct. 2883, 61 L. Ed. 2d 311 (1979).

B. Discussion.

Prisoners can establish an eighth amendment violation with respect to medical care if they can show there has been "deliberate indifference" to their serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976). The eighth amendment requires that prisoners be provided with a system of ready access to competent medical care. Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). "Prison officials show deliberate indifference to serious medical needs if prisoners are unable to make their medical problems known to medical staff." Id. "The medical staff must be competent to examine prisoners and diagnose illnesses ... [and] must be able to treat medical problems or to refer prisoners to others who can." Id.

The record in this case demonstrates that Oltarzewski's medical needs were not only made known to Maricopa County jail officials via a structured system, but were competently acted upon by medical staff. According to Maricopa Medical Center (MMC) medical records, Oltarzewski was seen by the MMC staff approximately 26 times between September 20, 1988, and February 11, 1989.²  Appellant does not refute this evidence. Nevertheless, Oltarzewski contends that the medical staff failed properly to treat him, because they refused to prescribe a particular brand of ear drops, Cortasporin, to treat his ear infection. See Appellant's Informal Brief, at 3; Appellant's Reply Brief, at 1, 3. He asserts that the prison doctors refused to order Cortasporin notwithstanding the fact that he informed them that he experienced adverse reactions to generic ear drops. However, Oltarzewski does not specifically allege that he had any adverse reactions to the medication provided by the MMC staff. His briefs suggest that the medication they provided was ineffective and that the staff deliberately denied him effective medication--i.e. Cortasporin ear drops.

At best Oltarzewski's complaint establishes a disagreement between Oltarzewski and the medical staff regarding the necessity of a particular prescription or a particular brand of ear drops. The medical staff's decision regarding the proper treatment of Oltarzewski's ear infection is a "classic example of a matter for medical judgment." Estelle v. Gamble, 429 U.S. at 107. The medical staff prescribed various drugs for appellant, including Octicar drops, Ampicillin, Acetasol drops, Augmentin, Hydrogen Peroxide, and Cortasporin drops. Whether Cortasporin, as opposed to any other brand name of ear drop or antibiotic, would have been the most effective for appellant's ear infection remains a matter of medical judgment. Appellant has the right not to any particular brand of medication, but to reasonably competent medical care. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982) (" [t]he medical staff must be competent to examine prisoners and diagnose illnesses.") The record shows that the medical staff examined the appellant, diagnosed his medical needs, and prescribed drugs which it deemed appropriate. Indeed, Oltarzewski states that once he used the ampicillin prescribed by one of the prison doctors his ear infection cleared up. Appellant's Informal Brief, at 2A. Even if the prison medical staff's judgment constituted negligence, the grant of summary judgment would be proper under Estelle v. Gamble.

Nothing in the record suggests that the jail officials, or the medical staff, were "deliberately indifferent" to Oltarzewski's medical needs. Oltarzewski does not present any specific facts which rebut the clear indications in the medical records that he was adequately treated for Eighth Amendment purposes. Even viewing the evidence in a light most favorable to Oltarzewski, it is apparent that his claim does not establish deliberate indifference under Estelle v. Gamble and its progeny. Therefore, the district court properly granted summary judgment in favor of defendants Mui, Garcia and Himmelberger.

Oltarzewski also argues that the prison officials failure to treat him within a reasonable amount of time caused him "wanton and unnecessary infliction of pain." He asserts that the staff would wait until he experienced extreme pain prior to allowing him to visit a "medical provider." The government does not respond to this argument in its brief. However, the uncontroverted facts in the medical records show that appellant was seen frequently by the medical staff. He was examined by staff physicians and his file was reviewed (or his prescriptions were refilled) no less than 16 times during a ten week period. Accordingly, we conclude that the defendants' alleged delays in the treatment of appellant does not constitute "deliberately indifference."

II. Did the District Court Err in Dismissing Appellant's "Unknown M.D." and "Unknown Defendants"?

Federal procedural practice precludes the use of fictitious defendants. Fed. R. Civ. P. 10(a). Additionally, the local rules of the District of Arizona prohibit "unknown" defendants. District of Arizona, Local R. of Prac. 10(d).

On February 16, 1989, the district court issued an order dismissing Oltarzewski's unknown defendants. Oltarzewski requested reconsideration of this order on April 6, 1989. Oltarzewski based his request for reconsideration on his alleged attempt to submit a "Notification of Name of Unknown M.D. Defendant and Correction of Wording" on January 15, 1989. There is no record of such a notification being filed in this case. Indeed, this would seem to be impossible since Oltarzewski's complaint was not filed until January 30, 1989--15 days after he alleges he filed the notification.

Upon reconsideration, on May 5, 1989, the district court issued a second order dismissing the unknown defendants. The district court noted that Oltarzewski had available to him more appropriate methods by which he could name a defendant whose name was unknown at the time of filing. Fed. R. Civ. P. 15(a) and District Court of Arizona, Local Rules of Practice Rule 10(e). Oltarzewski did not pursue these methods.

We conclude that the district court's dismissal of the unknown defendants was proper.

III. Did the District Court Err in Not Permitting Oltarzewski to Amend His Complaint?

Normally amendments to pleadings are liberally allowed in the "interests of justice." Fed. R. Civ. P. 15. Oltarzewski argues that the district court should have allowed him to amend his complaint after granting summary judgment to the defendants. Once the defendants' answer was filed on June 22, 1989, Oltarzewski needed leave of court to amend his complaint. The record does not show that he requested leave to amend. Thus, he cannot argue on appeal that the district court committed error in not allowing him to amend.

IV. Should Defendants Be Granted Attorneys' Fees Pursuant to 42 U.S.C. § 1988?

Defendants, as prevailing parties, request attorneys fees pursuant to 42 U.S.C. § 1988.

In an action to enforce a provision of 42 U.S.C. § 1983 the court may allow, in its discretion, the prevailing party a reasonable attorney's fee as part of its costs. 42 U.S.C. § 1988. These fees may be awarded at the appellate level as well as at the trial level. Sotomura v. County of Hawaii, 679 F.2d 152 (9th Cir. 1982). The purpose of the Civil Rights Attorneys Fees Award Act is to encourage meritorious civil rights litigation by allowing prevailing plaintiffs to obtain attorneys fees in all but special circumstances. Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820, 829 (7th Cir. 1984). However, successful defendants in civil rights cases are allowed to recover attorneys fees only upon a finding that plaintiff's action was frivolous, unreasonable or without foundation. Christianburg Garment Company v. EEOC, 434 U.S. 412, 422 (1978); Patton v. County of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988) (prevailing section 1983 civil rights defendant is entitled to attorneys fees only where action brought is found to be unreasonable, frivolous, meritless or vexatious).

With this standard in mind we decline to award attorneys fees in this instance. We agree with the district court that, although Oltarzewski's claims are not sufficient to show deliberate indifference, his action does not amount to frivolousness or vexatiousness.

The district court's judgment is affirmed. The parties shall bear their own costs.

AFFIRMED.