Jett v. Penner

• Decision Date: 09 March 2006
• Docket Number: No. 04-15882.,04-15882.
• Citation: 439 F.3d 1091
• Parties: Lance JETT, Plaintiff-Appellant, v. M. PENNER, D. Peterson, and Cheryl K. Pliler, Warden, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

439 F.3d 1091

Lance JETT, Plaintiff-Appellant, v. M. PENNER, D. Peterson, and Cheryl K. Pliler, Warden, Defendants-Appellees.

No. 04-15882.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 12, 2006.

Filed March 9, 2006.

COPYRIGHT MATERIAL OMITTED

Frank J. Riebli and Kelly A. Woodruff, Farella, Braun, and Martel, LLP, San Francisco, CA, for the appellant.

Catherine Woodbridge, Deputy Attorney General, Sacramentc, CA, for the appellees.

Appeal from the United States District Court for the Eastern District of California; Garland E. Burrell, Jr., District Judge, Presiding. D.C. No. CV-02-02036-GEB (JFM).

Before TASHIMA and W. FLETCHER, Circuit Judges, and EDWARD F. SHEA,^* District Judge.

SHEA, District Judge.

Plaintiff Lance Jett, who fractured his right thumb while housed in California State Prison-Sacramento ("CSP-Sacramento"), brought this action against prison doctors, M. Penner and Douglas Peterson, and Warden Cheryl Pliler, alleging Defendants (1) violated his constitutional rights by being deliberately indifferent to his serious medical needs in violation of the Eighth Amendment and (2) violated California Government Code § 845.6 by failing to ensure he timely saw an orthopedist to set and cast his fracture as directed by the initial physician's aftercare instructions. Mr. Jett appeals the district court order adopting the magistrate judge's Findings and Recommendation to grant Defendants' summary judgment motion.

We have jurisdiction over this timely appeal and hold the district court erred in adopting the magistrate's Findings and Recommendations because (1) Mr. Jett provided sufficient evidence, including medical slips, a letter, and a grievance, to demonstrate the existence of a genuine issue of material fact as to whether Dr. Penner's failure to see Mr. Jett prior to December 24, 2001, was deliberate indifference; (2) Mr. Jett provided sufficient evidence to demonstrate the existence of a triable issue of fact as to whether Dr. Penner's post-December 24, 2001, conduct was deliberately indifferent to Mr. Jett's need to have his fractured thumb set and placed in a permanent cast; (3) Mr. Jett presented sufficient evidence to establish the existence of a genuine issue of material fact as to whether Dr. Peterson and Warden Pliler were deliberately indifferent to Mr. Jett's condition because Mr. Jett is entitled to an inference that these individuals received the letters Mr. Jett wrote and sent via institutional mail advising of his fractured thumb and need to see an orthopedist; and (4) Mr. Jett stated a cause of action under California Government Code § 845.6 because this statute requires medical care to be summoned for an inmate who needs immediate medical care to have a fractured bone set and cast. Because we reverse the district court's summary judgment ruling and conclude Mr. Jett presented sufficient evidence to go to trial on these causes of action, we need not address Mr. Jett's contention the magistrate's discovery and scheduling orders effectively denied him the opportunity to take depositions.

I. BACKGROUND

On October 27, 2001, Mr. Jett fell from the top bunk to the floor of his prison cell at CSP-Sacramento and injured his right thumb. Because the injury occurred on a Saturday and there were no doctors on staff at the prison, Mr. Jett was taken to Mercy Hospital emergency room in Folsom, California, where he was seen by Dr. Kendrick Johnson. Dr. Johnson diagnosed Mr. Jett with a fracture to the first metacarpal of the right thumb. Dr. Johnson prescribed pain medicine, placed Mr. Jett's thumb in a temporary SPICA splint, and advised Mr. Jett verbally and in written aftercare instructions not to use his right hand and to ". . . see [an] orthopedic doctor early this week for recheck appointment." When Mr. Jett returned to CSP-Sacramento, the written aftercare instructions were given to a medical technical assistant.

Three days later, on October 30, 2001, Mr. Jett was seen at the prison by Charles I. Hooper, D.O. Dr. Hooper continued Mr. Jett on pain medication. Mr. Jett's hand was still too swollen to place in a permanent cast.

Throughout November and most of December 2001, Mr. Jett was not seen by a physician. He was in pain and relayed his need to be seen by an orthopedist to set and cast his fractured thumb by notifying a medical technical assistant, submitting medical slips, sending a letter to Dr. Penner on December 8, 2001, filing a formal grievance on December 11, 2001, and sending a letter to Dr. Peterson on December 13, 2001.

On December 24, 2001, — almost two months after the injury and diagnosis of the fractured thumb — Mr. Jett was seen by Dr. Penner. Dr. Penner requested an x-ray and noted that Mr. Jett's hand was still in the SPICA splint. The x-ray occurred on December 27, 2001, and the radiology report prepared by Dr. Andrew Nicks states, "fracture of the base of the first metacarpal is again identified. The fracture is oblique which extends into the margin of the articular surface. The position of the fragments appears to be unchanged. Healing is underway. . . . The fracture is healing. Deformity and slight angulation is stable." Dr. Penner reviewed the x-ray on January 30, 2002, noting, "healing fracture."

Following the December 24, 2001, consult with Dr. Penner, Mr. Jett continued to submit medical slips asking to be sent to an orthopedist to have his fractured thumb set and cast. On January 2, 2002, Dr. Penner removed Mr. Jett's splint, commenting in his notes, "I reviewed xrays which showed no obvious fracture malalignment." (Alteration in original.) On January 18, 2002, Dr. Penner again saw Mr. Jett and ordered another x-ray to "[rule out] nonunion of fractures." Dr. Penner prescribed additional pain medication.

Following a February 1, 2002, visit, Dr. Penner noted that he wanted an x-ray of the old fracture or to obtain a copy of a previous x-ray, as well as to obtain an orthopedist consult to follow up with the SPICA cast for the fracture. This orthopedic consultation request was marked "routine" and was not submitted by Dr. Penner until March 13, 2002.

The x-ray ordered by Dr. Penner on January 18, 2002, was taken on February 14, 2002. The radiology report for the x-ray states:

[a]n old fracture deformity is seen at the base of the first metacarpal. Spurring is seen projecting from the base of the metacarpal. The fracture is well-healed. The articular surface is irregular. Mild, probably post traumatic, degenerative change is present at the metacarpophalangeal joint. No dislocation or significant subluxation is seen. . . . Old fracture deformity involving the first metacarpal.

The radiology report for a March 22, 2002, x-ray contained similar findings and conclusions.

In February, Mr. Jett wrote a letter to Warden Pliler to tell her that, even though he had put in medical slips, he had not received a cast for his fractured hand. On February 19, 2002, a physical therapist advised Mr. Jett to begin hand physical therapy. Several days later, Mr. Jett was examined by Dr. Penner on February 25, 2002. Dr. Penner noted that the base of Mr. Jett's thumb was tender and Mr. Jett had "limited opposition now." Id. This was Mr. Jett's last visit with Dr. Penner until August 20, 2002.

Mr. Jett was seen by Dr. Hooper on March 15, 2002. Dr. Hooper ordered an x-ray, a consult with an orthopedic hand specialist, and pain medicine. The requested x-ray occurred on March 22, 2002. Dr. Ronald Hetrick reviewed the x-ray and found:

[t]here is a deformity of the proximal end of the metacarpal to the thumb which appears well-healed. There is an osteophyte present. This represents an old fracture with secondary osteoarthritis. . . There is no evidence for an acute fracture or dislocation, but there is also a deformity of the distal end of the second metacarpal consistent with a previous old healed fracture.

On April 9, 2002, a physician — not Dr. Penner — submitted an "urgent" Request for Services for outpatient "hand ortho surgeon." On April 19, 2002, Dr. Fong, an orthopedic specialist in Manteca, California, examined Mr. Jett's hand. Dr. Fong determined Mr. Jett should be referred to a hand specialist because the fracture had healed improperly.

Mr. Jett was next seen by Dr. Penner on August 20, 2002, with two subsequent visits on October 7, 2002, and November 12, 2002. On each of these occasions, Dr. Penner noted that a hand specialist consultation was pending.

On December 4, 2002, Mr. Jett was transferred to Pleasant Valley State Prison where he continued to take steps to obtain treatment for his hand. Ultimately, on May 30, 2003, — more than a year after Dr. Fong, the orthopedic specialist, recommended Mr. Jett be referred to a hand specialist and more than nineteen months since the injury to his hand — Mr. Jett was seen by Dr. Jeffrey L. Tanji at U.C. Davis Medical Center. Based on the current record, it is unclear what treatment Dr. Tanji provided; however, Dr. Tanji's letter to a doctor at Pleasant Valley State Prison following the May 30, 2003, appointment reflects Dr. Tanji planned to discuss pin placement with Mr. Jett to help repair the "quite . . . bad fracture."

Mr. Jett initiated this action pro se on September 17, 2002, seeking damages for pain and suffering and the continuing diminished use of his hand. He alleged causes of action under the Eighth Amendment and California Government Code § 845.6. Without holding a scheduling conference or obtaining information from the parties, the magistrate issued scheduling and discovery orders. Defendants filed a dispositive motion, and on January 16, 2004, the magistrate issued "Findings and Recommendations," recommending the district court grant summary judgment to Defendants on all of Mr. Jett's causes of action. The district court adopted the magistrate judge's recommendations in full and granted summary judgment in Defendants' favor on March 30, 2004. Mr. Jett timely appealed, and...