Unpublished Disposition, 936 F.2d 577 (9th Cir. 1991)

MEMORANDUM^** 

Kevin Dickinson, an Arizona state prisoner, appeals pro se the district court's summary judgment in favor of defendant prison employees in his action under 42 U.S.C. § 1983. In his complaint, Dickinson asserted eighth amendment claims against the prison employees based on their treatment of his arm injury. On appeal, he contends that the district court erred by finding that (1) he did not establish that defendant John Medlen was deliberately indifferent to his serious medical needs and (2) defendants Maria Lopez, Dimitri Catsaros, and T. White were entitled to qualified immunity.¹  We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo a district court's grant of summary judgment. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). We will affirm if, viewing the evidence in the light most favorable to the nonmoving party, no genuine issue of material fact remains for trial and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); White v. Roper, 901 F.2d 1501, 1503 (9th Cir. 1990).

Section 1983 requires a plaintiff to prove that a person acting under color of state law committed an act that deprived the plaintiff of a right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C. § 1983; White, 901 F.2d at 1503; Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988).

Prison employees violate the eighth amendment if they are deliberately indifferent to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). The indifference to medical needs must be substantial; mere malpractice, or even gross negligence, does not constitute cruel and unusual punishment. Estelle, 429 U.S. at 106; O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). A difference of opinion between an inmate and prison medical personnel does not suffice. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Delay in providing medical treatment does not constitute deliberate indifference unless the delay causes substantial harm. Wood, 900 F.2d at 1335; Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989); Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).

* Claim against Medlen

In support of his cross-motion for summary judgment, Dickinson made the following statements. Before his imprisonment, his doctor repaired a laceration of his left forearm and recommended a second operation to remove scar tissue, followed by physical therapy. After Dickinson's imprisonment, Dr. John Medlen, an orthopedic surgeon for the Arizona Department of Corrections, operated on Dickinson's arm on August 4, 1987, and told him that he would receive physical therapy in prison. Medlen discharged Dickinson from the hospital on August 8, 1987. This premature discharge harmed Dickinson because he did not receive sufficient pain medication after his return to prison.

Medlen did not return prison employees' telephone calls inquiring about the removal of Dickinson's stitches, which finally were taken out on August 31, 1987. This delay resulted in unnecessary pain and scarring. On September 11, 1987, Medlen examined Dickinson's arm and wrote an order allowing him to use a dumbbell. Medlen again examined the arm on November 25, 1987, and told Dickinson that he did not need either physical therapy or nerve graft surgery. The lack of physical therapy caused Dickinson to lose movement in his arm, rendered the operation useless, and created the need for another tenolysis procedure in August 1989.

Based on these circumstances, Dickinson contends that Medlen was deliberately indifferent to his serious medical needs because he (1) released Dickinson from the hospital too soon after surgery, (2) delayed the removal of Dickinson's stitches, (3) did not prescribe additional physical therapy, and (4) did not perform additional nerve graft surgery. This contention lacks merit.

First, Medlen stated in his affidavit that he performed most tenolysis procedures on an outpatient basis and was satisfied with Dickinson's postoperative progress when he released him from the hospital. This affidavit established that Dickinson's disagreement with the timing of his release was merely a difference of opinion with Medlen and thus did not amount to cruel and unusual punishment. See Sanchez, 891 F.2d at 242; Franklin, 662 F.2d at 1344.

Second, prison records indicate that Dickinson did not appear for an appointment with Medlen on August 21, 1987, but that the stitches were removed on August 31, 1987. Dickinson's allegations of unnecessary pain and scarring did not amount to substantial harm. Cf. Hunt, 865 F.2d at 200-01 (three-month delay in replacing dentures, causing gum disease and possible weight loss, constituted cruel and unusual punishment). Accordingly, the delay in removing the stitches did not violate the eighth amendment. See Wood, 900 F.2d at 1335.

Third, Medlen stated in his affidavit that he normally instructs tenolysis patients in flexion exercises for them to perform at home. The affidavit, the hospital discharge summary, and Medlen's report of August 26, 1987, stated that Dickinson was given these instructions. This evidence established that Dickinson's belief that he needed physical therapy in addition to the flexion exercises was merely a disagreement with Medlen's medical judgment. Accordingly, Medlen's failure to prescribe physical therapy did not violate the eighth amendment. See Sanchez, 891 F.2d at 242; Franklin, 662 F.2d at 1344.

Fourth, Medlen's operation report stated: "it was decided to decompress the nerves and return at a later date to perform cable grafts." In Medlen's affidavit and the report of August 26, 1987, he stated that upon further reflection, the cable graft procedure would not significantly benefit Dickinson. Again, Dickinson's opinion regarding the need for nerve graft surgery was merely a disagreement with Medlen's medical judgment. See Sanchez, 891 F.2d at 242; Franklin, 662 F.2d at 1344.

Accordingly, the district court did not err by granting summary judgment in favor of Medlen.

II

Other Defendants

Dickinson contends that the district court erred by determining that Lopez, Catsaros, and White were shielded by qualified immunity.²  This contention lacks merit as to Dickinson's claims for damages against these defendants.

Government officials performing discretionary functions enjoy qualified immunity from liability for damages in civil rights actions. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When qualified immunity applies, the shield from liability will be lifted only if the party's conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Id. For a right to be clearly established, it must be " 'sufficiently clear that a reasonable official would understand that what he is doing violates that right.... [I]n the light of preexisting law the unlawfulness must be apparent.' " Baker v. Racansky, 887 F.2d 183, 186 (9th Cir. 1989) (quoting Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)). If the plaintiff proves that the right allegedly violated was clearly established, the officials must prove that their conduct was objectively reasonable even though it might have violated constitutional standards. Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991); Baker, 887 F.2d at 186.

In Dickinson's complaint and memoranda, he alleged that on August 9, 1987, Lopez, a prison nurse, gave him his pain medication only after an argument and later refused to examine his arm or change his dressing. Lopez stated in her affidavit that she gave Dickinson his Tylenol and that there was no need to change his dressing. In 1987, it was clearly established that a brief delay in dispensing pain medication was not the type of substantial indifference to medical needs that violated the eighth amendment. See Estelle, 429 U.S. at 106; Shapely, 766 F.2d at 407. Accordingly, the district court did not err by finding that Lopez was shielded by qualified immunity. See Baker, 887 F.2d at 186.

Dickinson alleged that Catsaros, a prison physician, conspired with others to deny him pain medication beginning on August 17, 1987. Catsaros stated in his affidavit that he and Medlen and prison physician's assistant Jones discussed Dickinson's case and decided to prescribe Tylenol from August 17 to 22 but to discourage further medication in light of Dickinson's history of substance abuse. In 1987, it was clearly established that such a refusal to dispense pain medication was not the type of substantial indifference to medical needs that violated the eighth amendment. See Estelle, 429 U.S. at 106. Dickinson's belief that he needed more medication was merely a difference of opinion as to Catsaros's medical judgment and thus did not amount to cruel and unusual punishment. See Franklin, 662, F.2d at 1344. Accordingly, the district court did not err by finding that Catsaros was shielded by qualified immunity. See Baker, 887 F.2d at 186.

Dickinson alleged that White, a prison lieutenant, refused to follow Medlen's order that Dickinson use a dumbbell to strengthen his arm. White stated in his affidavit that the dumbbell, which Medlen recommended but did not order, would have been a security risk but that he provided Dickinson with other means of exercising his arm. In 1987, it was well established that prison officers had wide-ranging discretion to preserve prison security. See Bell v. Wolfish, 441 U.S. 520, 547-48 (1979). Moreover, White's refusal to permit a particular type of exercise was not the type of substantial indifference to medical needs that violated the eighth amendment. See Estelle, 429 U.S. at 105. Accordingly, the district court did not err by finding that White was shielded by qualified immunity. See Baker, 887 F.2d at 186.

Qualified immunity does not bar actions for declaratory or injunctive relief. American Fire, Theft & Collision Managers, Inc. v. Gillespie, No. 89-16210, slip op. at 5808 (9th Cir. May 8, 1991) (quoting Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989)). Nevertheless, we may affirm on any ground supported by the record. Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir. 1987). For the reasons discussed above, Dickinson did not establish that Lopez, Dickinson, and White were deliberately indifferent to his serious medical needs in violation of the eighth amendment. See Estelle, 429 U.S. at 106. Accordingly, the district court did not err by granting summary judgment on Dickinson's claims for declaratory relief against these defendants because they did not deprive him of any constitutional right.

AFFIRMED.