Unpublished Disposition, 933 F.2d 1018 (9th Cir. 1991)

MEMORANDUM^** 

Pro se plaintiff-appellant Patrick Zanzucchi appeals from the district court's judgment on his civil rights suit. Zanzucchi originally brought his claim against these defendants pursuant to 42 U.S.C. § 1983. This allegation of jurisdiction was defective, however, the district court took jurisdiction pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Zanzucchi challenges the dismissal of his complaint against defendants Wynberg, Glas, Moore, Duncan, Sayad and Delgado; the grant of summary jdugment and dismissal in their official capacity of defendants Salazar, Carlson and Townsend; and the denial of plaintiff's motion for expedited service of process on defendant Townsend. We affirm.

I. Defendants Wynberg, Glas, Moore, Duncan, Sayad and Delgado

Zanzucchi alleges that these defendants violated his Eighth Amendment right to be free from cruel and unusual punishment because of their reactions to his medical complaints. In order to prevail, Zanzucchi must show that each defendant's action constituted "deliberate indifference to [his] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976).

Zanzucchi has not met his burden of proof. Zanzucchi's medical records show that from the time of his injury on July 6 to his transfer from the Phoenix Federal Correctional Institute ("PFCI") on August 26, Zanzucchi was seen by the medical staff at least nine times, was X-rayed several days after his injury, and was treated through use of heating pads and painkillers almost daily. In addition, Zanzucchi was examined by Dr. Steven Dutch, a neurologist, on July 29. In his report, Dr. Dutch found Zanzucchi's condition had improved since his accident. Zanzucchi was also sent to John C. Lincoln Hospital for a neurological examination. Although Zanzucchi ultimately needed surgery for his injury, he presents no evidence of deliberate indifference by the defendants to his medical needs. At most, the defendants' conduct was negligence. However, mere negligence in diagnosing or treating a medical condition is insufficient to support an Eighth Amendment claim. Id. Therefore, the district court's dismissal of the complaint against defendants Wynberg, Glas, Moore, Duncan, Sayad and Delgado was proper.

Salazar is the chief deputy of the United States Marshal. Carlson is the Warden and Chief Executive Officer of the PFCI. Both are entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800 (1981).

Under Harlow, government officials performing discretionary functions are shielded from liability for civil damages if their conduct does not violate a clearly established constitutional or statutory right of which a reasonable person would have known. Id. at 818. Zanzucchi alleges Salazar and Carlson violated his Eighth Amendment rights and therefore the Estelle test of deliberate indifference applies here as well.

Salazar arranged for plaintiff's transport to a medical center. Zanzucchi traveled for 18 days by bus with his wrists and ankles in cuffs. Zanzucchi alleges that his mode of transportation shows Salazar's deliberate indifference to his injuries. However, in scheduling Zanzucchi's transportation, Salazar checked Zanzucchi's medical records and found that he was approved for travel by any means. Salazar clearly knew of Zanzucchi's injuries. In fact, he was instrumental in securing Zanzucchi's referral to Dr. Dutch and to Lincoln Hospital. However, since Zanzucchi's record indicated he was free to travel by any mode, Salazar's actions do not constitute a violation of Zanzucchi's Eighth Amendment rights.

Zanzucchi alleges Carlson, as warden, had knowledge of his injury yet refused to authorize treatment for him. However, Zanzucchi offers no proof of Carlson's knowledge. In addition, Zanzucchi produced declarations of nurse practitioner Moore and physician's assistants Wynberg and Glas to show his efforts to secure medical attention. However, all three state that they do not remember Zanzucchi requesting an exam by a doctor. If Zanzucchi never requested an examination, Carlson could never have had knowledge of his needs. Zanzucchi produced no other evidence to show Carlson's knowledge. Therefore, the district court's grant of summary judgment against defendants Salazar and Carlson was proper.

Dr. Townsend was a physician employed at PFCI at the time of Zanzucchi's accident. Dr. Townsend never examined Zanzucchi. Zanzucchi claims this failure to examine amounts to deliberate indifference. The district court granted Dr. Townsend's summary judgment based on her claims of immunity.

Zanzucchi's exclusive remedy against Dr. Townsend is under the Federal Tort Claims Act (FTCA), 42 U.S.C. § 233. Section 233 specifically states that a plaintiff's exclusive remedy resulting from the performance of medical or surgical functions by any Public Health Service employee is under the FTCA. The Supreme Court has acknowledged this. See Carlson v. Green, 446 U.S. 14, 19-20 (1980).

Zanzucchi also claims that the district court should not have granted Dr. Townsend summary judgment because she was never properly served with the complaint and summons. The U.S. Marshal was charged with serving the complaint. However, since Dr. Townsend no longer worked at PFCI, the marshal could not locate her, thus was unable to serve her with process. Nevertheless, Dr. Townsend made a special appearance in order to move for summary judgment. The district court never resolved whether Dr. Townsend's appearance made service of process unnecessary. Since Dr. Townsend asserted a complete defense to the complaint, the district court found the issue moot.

A court may dismiss with prejudice an in forma pauperis complaint before service of process under 28 U.S.C. § 1915(d) when it contains a complete defense to the action on its face. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (quoting Franklin v. Murphy, 745 F.2d 1221, 1227 (9th Cir. 1984)). Although the court should notify a pro se plaintiff of the defects in his pleadings and give him leave to amend his complaint, the court need not do so if the complaint could not be corrected by amendment. Id. Since Dr. Townsend's defense was complete, the complaint could not have been corrected. Zanzucchi could not successfully amend his complaint because he had not exhausted his administrative remedies, which is necessary to bring a claim under the FTCA. Therefore, summary judgment was appropriate.

Zanzucchi challenges the district court's dismissal of defendants Carlson, Mathews and Salazar in their official capacities. Suits charging federal officials with unconstitutional acts are not barred by sovereign immunity. United States v. Yakima Tribal Ct., 806 F.2d 853, 859 (9th Cir. 1986). The suit, however, must be brought only against the official as an individual, not as a government agent. Id. Zanzucchi's claim was based on violation of the Eighth Amendment. Therefore, it may be brought only against the defendants as individuals and the district court's dismissal was proper.

AFFIRMED.