Crowley v. Bannister

• Citation: 734 F.3d 967
• Decision Date: 30 October 2013
• Docket Number: No. 12–15804.,12–15804.
• Parties: John CROWLEY, Plaintiff–Appellant, v. Robert BANNISTER, Dr.; Dwight Neven, Warden; Tamiia Grisham; Jane Balao–Cledera; Daniel Sussman; Pat Diliddo, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

734 F.3d 967

John CROWLEY, Plaintiff–Appellant,

v.Robert BANNISTER, Dr.; Dwight Neven, Warden; Tamiia Grisham; Jane Balao–Cledera; Daniel Sussman; Pat Diliddo, Defendants–Appellees.

No. 12–15804.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Sept. 11, 2013.

Filed Oct. 30, 2013.

Francis Gerald Fanning, Tempe, AZ, for Plaintiff–Appellant.

Clark G. Leslie, Senior Deputy Attorney General, Office of the Nevada Attorney General, Appellate Division, Carson City, NV, for Defendants–Appellees.

Appeal from the United States District Court for the District of Nevada, Kent J. Dawson, District Judge, Presiding. D.C. No. 2:10–cv–00150–KJD–VCF.

Before: Arthur L. ALARCÓN and MARSHA S. BERZON, Circuit Judges, and JACK ZOUHARY, District Judge.^*

OPINION

ALARCÓN, Senior Circuit Judge:

John Crowley appeals from the district court's decision granting summary judgment and dismissing his pro se claim that his civil rights were violated because the named defendants, Dr. Robert Bannister, Dr. Daniel Sussman, Dwight Neven, Pat Diliddo, Tamiia Grisham, and Jane Balao–Cledera, were deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment of the United States Constitution. Crowley, now represented by counsel, raises the following issues on appeal: (1) whether we have jurisdiction to hear this appeal under 28 U.S.C. § 1291; (2) whether the district court abused its discretion in failing to comply with Rule 4(m) of the Federal Rules of Civil Procedure in dismissing the complaint against Dr. Sussman; (3) whether the district court erred in granting summary judgment on the merits in favor of Dr. Bannister; (4) whether the district court abused its discretion in denying his request for leave to amend his second amended complaint; and (5) whether the district court should have been required to advise him of his rights under Rule 56(d) of the Federal Rules of Civil Procedure.

We conclude that we have jurisdiction over this appeal. We affirm the district court's grant of summary judgment in favor of Dr. Bannister because Crowley failed to submit evidence raising a genuine issue of material fact regarding whether Dr. Bannister was deliberately indifferent to his serious medical needs. We also affirm the district court's grant of summary judgment in favor of Warden Neven and nurses Grisham, Diliddo, and Balao–Cledera because Crowley expressly waived his appeal against them in his reply brief. We vacate the clerk's entry of judgment in favor of Dr. Sussman because the district court abused its discretion in failing to comply with Rule 4(m). We also vacate the district court's decision denying Crowley's request for leave to amend his second amended complaint to name additional defendants. We remand with instructions to comply with Rule 4(m) with respect to Dr. Sussman and to allow Crowley leave to amend his second amended complaint.

I

Crowley, acting pro se, filed his initial complaint in the district court on February 3, 2010. The district court dismissed the complaint without prejudice following its initial review under 28 U.S.C. § 1915A. Crowley then filed his first amended complaint. Before any action was taken by the defendants or the district court with respect to the first amended complaint, he filed a second amended complaint, in which he alleged a § 1983 action for deliberate indifference of a serious medical need against Dr. Sussman; Dr. Bannister, the director of the medical department at the Nevada Department of Corrections' (“NDOC”) High Desert State Prison (“HDSP”); Warden Neven, the warden at HDSP; and three nurses, Grisham, Diliddo, and Balao–Cledera.

In his second amended complaint, Crowley set forth the following allegations: Nurse Grisham was the intake nurse upon his arrival at HDSP. She informed him there were only two pill calls at the facility and changed his Lithium prescription from three doses to two without the prior approval of a doctor. Dr. Sussman never met with him and did not properly screen his medical file or review Nurse Grisham's alteration to his prescription. His cellmate informed Nurse Diliddo of his “bizarre behavior” and unresponsiveness on May 10, 2009, but she refused to treat him. Nurse Balao–Cledera delayed six hours in providing him medical care after his cellmate informed her of his behavior on May 14, 2009, even though she knew he was suffering from an overdose. Dr. Bannister and Warden Neven were responsible for the operation of HDSP's medical unit and knew that the nurses regularly changed the patient's prescriptions, even though they were not qualified to do so and had not received prior approval from a doctor.

Crowley claimed that these alleged actions resulted in his hospitalization and ongoing mental and physical side effects. He also requested leave to amend the second amended complaint “with names of Defendants when they are learned.”

On April 25, 2011, the district court issued a screening order based on its initial review of the second amended complaint under 28 U.S.C. § 1915A. It directed Nevada's Attorney General to advise the court within 21 days whether she could accept service for the named defendants. With respect to any defendant for whom she could not accept service, the district court ordered her to “file, under seal, the last known address(es) of those defendant(s);” and also directed Crowley to “file a motion requesting the issuance of a summons and specifying a full name and address” for such defendant. It further ordered that “[s]ervice must be completed within one hundred twenty (120) days from the Attorney General's service of a statement that she will not be able to accept service for the defendant.”

Crowley's copy of the screening order was returned to the district court as undeliverable on May 2, 2011. The district court's docket indicates that the order was “not remailed,” as “[n]o other address was available” for Crowley at that time.

Seven days later, on May 9, 2011, Crowley notified the district court that he was now residing at the Lovelock Correctional Center (“LCC”). The notice was dated May 6, 2011. The district court docket does not reflect that its screening order was thereafter mailed to the LCC address.

The Attorney General accepted service on behalf of all defendants except for Dr. Sussman. She declined to accept service on behalf of Dr. Sussman because “Daniel Sussman is not an employee nor has he ever been an employee of the NDOC.” The Attorney General did not provide Dr. Sussman's last known address.

The Attorney General filed a motion to dismiss the second amended complaint and, in the alternative, a motion for summary judgment on behalf of all defendants, except for Dr. Sussman. In support of the motion, the Attorney General provided Crowley's medical records, as well as declarations from defendants and other NDOC staff.

Crowley's medical records reveal the following facts: Crowley is an inmate who has a history of bipolar disorder, delusions, Parkinson's disease, and hypertension. During Crowley's initial imprisonment at LCC, he was administered 900 milligrams of Lithium in the morning and afternoon and 600 milligrams of Lithium in the evening. On April 16, 2009, he was transferred to HDSP. During intake, Nurse Richard Orden reviewed his chart and referred him to psychological services. That same day, Dr. Sussman changed Crowley's prescription for Lithium to be administered twice daily in 1,200–milligram doses. Although the frequency of the doses was altered from three to two doses per day, the total daily amount of 2,400 milligrams stayed the same.

On May 16, 2009, a floor officer notified the medical staff regarding Crowley's unusual behavior. When Nurse Cordero responded, she was advised by his cellmate that Crowley had eaten soap the night before and had no appetite for food. She noted that he was verbally responsive, but was also slow in his response, confused, staring blankly, jerking, and eating tissue paper. She determined he should be admitted to the infirmary and that his Lithium level should be checked.

Crowley was admitted to the infirmary by the telephone order of Dr. Holmes. When admitted, he responded to questions and obeyed simple commands, but was shaking. His blood was drawn to test his Lithium level.

Crowley spent the following day in the infirmary and was attended to by nurses Grisham and Balao–Cledera. Upon examining Crowley on May 18, a doctor ordered that he be transferred to the emergency room at Valley Hospital based on a diagnosis of probable Lithium toxicity. At the hospital, “he was treated for Lithium toxicity and dehydration secondary most likely due to Lithium-induced Nephrogenic Diabetes Insipidus, a concentrating defect which can produce polyuria, an excessive or abnormally large production and/or passage of urine.” He was discharged three weeks later.

Defendants argue that Warden Neven and Dr. Bannister were not liable under § 1983 because their declarations and Crowley's medical records reflected that his medication was changed by a doctor, not a nurse, and that, even if nurses were allowed to change a patient's medications at HDSP, neither directed, approved, or knew of such a policy. Regarding nurses Grisham, Diliddo, and Balao–Cledera, Defendants argue that the medical records and other evidence established that Crowley had incorrectly identified their roles in his medical care and that the medical care they did provide Crowley did not reflect willful indifference.

The district court issued a minute order informing Crowley of his rights under Rules 12 and 56 of the Federal Rules of Civil Procedure, as required by this Court's decisions in Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.1988), and Rand v. Rowland, 154 F.3d 952 (9th Cir.1998) (en banc). The court's order advised Crowley, inter alia, that “if evidence is submitted with a motion to dismiss and considered by the court, then the motion will be treated as a motion for summary judgment” and...