Unpublished Disposition, 844 F.2d 792 (9th Cir. 1986)

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US Court of Appeals for the Ninth Circuit - 844 F.2d 792 (9th Cir. 1986)

Edward M. HOBSON, Plaintiff-Appellant,v.Mike PURVIS; Allen Bailey; and Karen McCarthy, Defendants-Appellees.

No. 86-4131.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 26, 1988.* Decided March 30, 1988.

Before NELSON, NOONAN and LEAVY, Circuit Judges.



Edward M. Hobson, a Washington State prisoner, appeals pro se and in forma pauperis the grant of summary judgment for the defendants in this action pursuant to 42 U.S.C. § 1983. Hobson contends the prison staff or officials (prison staff) violated his eighth amendment rights by denying him adequate medical treatment for his pneumonia. Specifically, the staff prescribed aspirin and, on the hospital staff's recommendation, had Hobson wait over the weekend for a diagnosis of his symptoms.

The judgment is affirmed. To maintain a Section 1983 action based on inadequate medical treatment, a prisoner must show that the prison staff acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976).1 


Hobson, an inmate at the Washington State Penitentiary in Walla Walla, Washington, reported to sick call on the morning of Tuesday, July 26, 1983. Prison medical officials diagnosed him as having a cold and prescribed a decongestant and cough medicine.

On the evening of Friday, July 29, 1983, Hobson complained to the guards that he felt ill and needed to go to the hospital. A guard called the hospital and informed the medical staff of Hobson's condition. The guard was told that Hobson could not report to the hospital at that time. Between the evening of July 29 and July 31, Hobson informed the guards several more times that he wanted to go to the hospital. The guards telephoned the hospital each time, and its medical staff told the guards to have Hobson take two aspirin and report to sick call Monday morning, August 1, 1983.

Hobson reported to sick call on that Monday and subsequently was diagnosed as having pneumonia. He was hospitalized, treated, and released three days later.

On May 11, 1984, Hobson filed an action pursuant to 42 U.S.C. § 1983 against several members of the prison staff.2  The officials filed a motion for summary judgment. Hobson filed a cross motion for summary judgment. The district court entered summary judgment in favor of the officials and dismissed Hobson's action on July 7, 1986. Hobson appeals.3 


* Standard of Review

This court reviews the trial court's grant of summary judgment de novo. Hope v. International Bhd. of Elec. Workers, 785 F.2d 826, 828 (9th Cir. 1986).


Deliberate Indifference

Hobson claims that the prison staff violated his eighth amendment rights by prescribing aspirin and making him wait until Monday for the hospital's diagnosis. This contention lacks merit.

To state a claim under 42 U.S.C. § 1983 based on a violation of his eighth amendment right to adequate medical treatment, Hobson must show that the staff acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). This indifference must be more than mere negligence. Id. Deliberate indifference involves the "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 104 (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Isolated occurrences of neglect do not amount to deliberate indifference. Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986), cert. denied, 107 S. Ct. 2462 (1987).

Hobson insists the officials' failure to take him to the hospital over the weekend for an accurate diagnosis shows deliberate indifference to his serious medical needs. "Prison officials show deliberate indifference to serious medical needs if prisoners are unable to make their medical problems known to the medical staff." Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). Here, however, the guards made Hobson's condition and symptoms known to the hospital staff four times during the two-day period. The hospital staff had Hobson's medical records, had treated him three days earlier, and made a diagnosis when they were informed of his present symptoms.

The gravamen of Hobson's allegations is that his illness was misdiagnosed, causing a delay in treatment. The initial diagnosis was wrong. Such an isolated occurrence does not rise to the level of cruel and unusual punishment merely because the victim is a prisoner. Estelle, 429 U.S. at 106. Because Hobson has not shown that the officials acted with deliberate indifference to his serious medical needs, the district court did not err by granting summary judgment in favor of the defendants.

The judgment is affirmed.


The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


On November 12, 1987, Hobson filed an objection to submission of this appeal without oral argument (see case file). Nevertheless, this case is suitable for submission without oral argument because the legal standard is established and the result is clear. See Fed. R. App. P. 34(a) and 9th Cir.R. 34-4. Therefore, we deny Hobson's request for oral arguments


Named as defendants in the original complaint were Mike Purvis, prison health care manager; Allen Bailey, Physicians' Assistant; Karen McCarthy, Registered Nurse; Lawrence Kincheloe, Superintendent of Washington State Penitentiary; and prison guards Hutchins, Markley, Eubanks, Sasser, and Queen


On January 6, 1988, Hobson filed a motion for an emergency temporary restraining order or injunction. The motion reiterated the claims made in his original complaint. A motion panel denied the motion on January 19, 1988