Cano v. Taylor

• Citation: 739 F.3d 1214
• Decision Date: 14 January 2014
• Docket Number: No. 10–17030.,10–17030.
• Parties: Erineo CANO, aka Eddie Cano, Plaintiff–Appellant, v. Nicole TAYLOR, Psychologist; Susan Kaz, Psychologist; Meredith Mitsifer, Psychologist; Ralph Mertens, Psychologist; Dora B. Schriro, Warden, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

739 F.3d 1214

Erineo CANO, aka Eddie Cano, Plaintiff–Appellant,

v.Nicole TAYLOR, Psychologist; Susan Kaz, Psychologist; Meredith Mitsifer, Psychologist; Ralph Mertens, Psychologist; Dora B. Schriro, Warden, Defendants–Appellees.

No. 10–17030.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 3, 2013.

Filed Jan. 14, 2014.

Kelly A. Kszywienski (argued) and Andrew M. Jacobs, Snell & Wilmer L.L.P., Phoenix, AZ, for Plaintiff–Appellant.

Claudia Acosta Collings (argued), Assistant Attorney General, Tucson, AZ, for Defendants–Appellees.

Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, Senior District Judge, Presiding. D.C. No. 2:07–cv–02456–ROS.

Before: BARRY G. SILVERMAN, CONSUELO M. CALLAHAN, and N. RANDY SMITH, Circuit Judges.

OPINION

CALLAHAN, Circuit Judge:

Erineo Cano, a former prison inmate, appeals from the district court's judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to his mental health needs in violation of the Eighth Amendment (count I), and violations of his right to freely exercise his religious beliefs and to have access to the courts, in violation of the First and Fourteenth Amendments (counts II and III). The district court granted summary judgment on count I, and dismissed counts II and III for failure to exhaust administrative remedies, pursuant to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). On appeal, Cano challenges both decisions, as well as the district court's rulings denying him appointment of counsel and in forma pauperis (“IFP”) status.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse and remand in part.

I.

Cano filed his original district court complaint on December 4, 2007. Cano alleged that while an inmate in a facility run by the Arizona Department of Corrections (“AZ DOC”), he did not receive proper medical care for his mental illness, with the result that he became suicidal. Although he was seen regularly by mental health care professionals at the prison where he was housed, he was unhappy with the quality of care he was offered, and disagreed with the types of medications he was prescribed. The record also indicates a diagnosis of malingering and violence, the latter of which (along with non-compliance and his own personal requests) prohibited him from actively participating in the mental health program.

On May 29, 2008, Cano filed a “Motion for Leave to Add Claims” and a First Amended Complaint (“FAC”). The FAC added counts II and III for alleged violations of Cano's First and Fourteenth Amendment rights. Count II claimed that Cano's freedom of religion was violated because kosher food was not made available to him.¹ Count III argued that he was denied meaningful access to the courts because a self-help litigation manual he had previously utilized had been removed from the prison library, and “no other self-help litigation manual ha[d] been substituted.”

On September 18, 2009, defendant Schriro, Director of the AZ DOC, filed a 12(b) motion to dismiss counts II and III as barred by 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies. Cano argued that he had exhausted administrative remedies.

The district court, however, dismissed counts II and III without prejudice on the grounds that the administrative appeals submitted by Cano as to those counts were dated after the filing date of the initial complaint. Thus, although the FAC was filed after the administrative appeals for counts II and III were allegedly exhausted, the court, using the date of the original complaint, found that counts II and III were not administratively exhausted as required under the PLRA. Because it found the date of the original complaint to be dispositive of the exhaustion issue, the district court did not reach the question of whether Cano, in fact, had followed proper prison procedures in pursuing administrative remedies as to counts II and III.

Cano filed a timely notice of appeal, and the Appellate Commissioner appointed counsel for purposes of this appeal only. During the pendency of this appeal, Cano was released from prison.

II.

A.

Appellees argue that Cano's release from prison renders his claims for injunctive and declaratory relief moot.

We have held that a prisoner's claims for punitive and compensatory relief may remain viable after his release. McQuillion v. Schwarzenegger, 369 F.3d 1091, 1095–1096 (9th Cir.2004) (“If [the plaintiff] is entitled to collect damages in the event that it succeeds on the merits, the case does not become moot even though declaratory and injunctive relief are no longer of any use.”) (quoting Z Channel Ltd. P'ship v. Home Box Office, Inc., 931 F.2d 1338, 1341 (9th Cir.1991)); see also Rhodes v. Robinson, 408 F.3d 559, 566 n. 8 (9th Cir.2005) (“[I]t is firmly established that claims for monetary damages survive a prisoner's release from the officers' custody.”).²

Here, Cano sought not only preliminary and permanent injunctions, but also declaratory relief and punitive and compensatory damages. Consistent with case law, Cano's claims for injunctive and declaratory relief are mooted by his release from prison, but his other claims may not be.

B.

At best, Cano's claim regarding inadequate medical care amounts to a difference of opinion as to his medical treatment, which is not actionable. The Supreme Court has held that “to show an Eighth Amendment violation a prisoner must typically show that a defendant acted, not just negligently, but with ‘deliberate indifference.’ ” Minneci v. Pollard, ––– U.S. ––––, 132 S.Ct. 617, 625, 181 L.Ed.2d 606 (2012). In the instant case, there is no evidence that Cano's medical needs were treated with deliberate indifference.

Rather, the record indicates that the Defendants were very responsive to Cano's complaints. The record is replete with health need request forms filed by Cano and the record indicates that Cano was seen by mental health care employees regularly for his complaints. For example, Cano was seen:

• sixty-three times by psychologist Taylor in a sixteen-month period;

• thirty-six times by psychologist Mertens between 2007 and 2008;

• by three psychiatrists and ten psychologists or psychology associates a total of approximately 106 times in 2007;

• by one psychiatrist and fifteen psychologists or psychology associates a total of approximately 232 times in 2008;

• by two psychiatrists and nine psychologists or psychology associates over 100 times in 2009;

• by one psychiatrist and two psychologists five times in 2010 prior to his release in February of that year.

Further, there is a great deal of evidence that his suicide threats were manipulative in nature. Cano was placed on suicide watch 15 times during 16 months as a result of his statements that he was thinking of harming himself. The record indicates that during follow-up visits to his cell, Cano's chief complaint was boredom, and he sought a television and radio in his cell. For instance, Cano repeatedly stated that he “need[ed] a change of scenery” or that he “needed a tv or radio for diversion. That is what I would have gotten out of the mental health program.”

Further, Cano was an uncooperative and difficult patient. The record indicates that Cano repeatedly and regularly exhibited violent behaviors and therefore could not be placed in a lower custody part of the prison (a unit other than the Special Management Unit (“SMU”) or the pod in the mental health unit) because he was a danger to himself and/or others. For example, the prison's daily cell-front visit logs show statements by Cano such as: “I feel like harming someone else.”; “You f-with me, I'll get you. You f-with me, I'll mess you up.”; “I'm feeling angry. I am not ready to go back today.”; “Get the f-away from my face.”; “I had an episode yesterday—I punched my bunk for 20 minutes.”; and “I'll cut your f-ing head off.” There are also 28 documented refusals by Cano to take his medication in the record.³ There are countless forms in the record demonstrating follow-up by staff, including cell-front visits to check on Cano's mood, continuous progress reports, psychiatric follow-ups, mental health treatment plans, and watch discharge summaries.

In short, the record indicates that prison mental healthcare professionals were incredibly responsive to Cano's needs and no reasonable trier of fact could find that there was deliberate indifference to Cano's complaints. Therefore, the district court's grant of summary judgment on count I is affirmed.⁴

C.

Cano also appeals the district court's denial of his request for appointed counsel. The decision to appoint counsel in a civil suit is one of discretion and a district court's determination will be overturned only for abuse of that discretion. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.2009). A district court must determine whether a) there is a likelihood of success on the merits; and b) the prisoner is unable to articulate his claims in light of the complexity of the legal issues involved. Id. None of these factors is dispositive; rather they must be considered cumulatively. Id.

In the instant case, there are no exceptional circumstances, because Cano is unlikely to succeed on the merits, and Cano has been able to articulate his legal claims in light of the complexity of the issues involved. Therefore, we affirm the district court's denial of Cano's request for counsel.

Cano argues that the district court, in granting summary judgment as to count I and denying the appointment of counsel, improperly relied on Hutchinson v. United States, 838 F.2d 390, 393 (9th Cir.1988), for the proposition that it was incumbent on him “to provide an affidavit or deposition of an expert to establish the standard of care.” It appears that the district court may have overstated the need for an expert, but if error, this was harmless error because the district court properly held that Cano's “conclusory...