Shapley v. Nevada Bd. of State Prison Com'rs

• Decision Date: 03 October 1984
• Docket Number: No. 84-1568,84-1568
• Citation: 766 F.2d 404
• Parties: Billy R. SHAPLEY, Plaintiff-Appellant, v. NEVADA BOARD OF STATE PRISON COMMISSIONERS, an administrative body, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 404

766 F.2d 404

Billy R. SHAPLEY, Plaintiff-Appellant, v. NEVADA BOARD OF STATE PRISON COMMISSIONERS, an administrative body, et al., Defendants-Appellees.

No. 84-1568.

United States Court of Appeals Ninth Circuit.

Submitted Oct. 3, 1984 ^*.

Decided July 16, 1985.

Bill Shapley, Carson City, Nev., for plaintiff-appellant.

Richard Bryan, Atty. Gen., Ana Colon, Deputy Atty. Gen., Carson City, Nev., for defendants-appellees.

Appeal from the United States District Court for the District of Nevada.

Before BROWNING, Chief Judge, WALLACE and POOLE, Circuit Judges.

PER CURIAM:

Billy R. Shapley, a Nevada state prisoner, appeals the district court's dismissal of his complaint as frivolous under 28 U.S.C. Sec. 1915(d). He contends that the district court erred in determining that res judicata and collateral estoppel rendered frivolous his claim that prison officials were deliberately indifferent to his medical needs by denying him surgery. He also claims that the district court erred in dismissing his action without discussing his allegation that the state violated his federally protected rights by charging $3 for each medical visit. We reverse on the deliberate medical indifference claim, and affirm on the fee imposition claim.

I. BACKGROUND

Shapley, an inmate at the Northern Nevada Correctional Center, injured his knee in 1978 while he was incarcerated. In 1981, he filed a pro se complaint under 42 U.S.C. Sec. 1983 against various prison officials and employees, alleging several claims of medical indifference. He specifically alleged that prison officials had improperly withheld medication, refused to deliver food to his room, and aggravated his condition by transferring him to a unit further from the mess hall. After a bench trial in January 1982, the district court found that medical treatment had been available for Shapley, but that he had not taken advantage of it. The court found no evidence of deliberate indifference to Shapley's medical needs by prison officials or physicians. Shapley v. Wolff, No. CIV-R-78-217-ECR, slip op. at 27-28 (D.Nev. March 24, 1982).

On July 5, 1983, Shapley again filed a pro se civil rights complaint under section 1983 alleging deliberate indifference to his medical needs. He alleged two counts of medical indifference: (1) the denial of knee surgery from May 1978 to March 1983 (when

Shapley's knee was operated upon), which delay seriously aggravated his injury and resulted in permanent impairment, in violation of his eighth and fourteenth amendment rights; and (2) the imposition of a $3 fee for each medical visit, in violation of his first, fifth, eighth and fourteenth amendment rights. The State moved to dismiss the complaint on the grounds that Shapley had failed to state a claim for which relief could be granted or, in the alternative, that the action was frivolous under 28 U.S.C. Sec. 1915(d). On December 21, 1983, the district court dismissed the complaint as frivolous under section 1915(d) because the issue of deliberate indifference to Shapley's medical needs had been expressly litigated in the earlier action, and there was therefore no reasonable probability that Shapley would prevail on the merits. The court did not discuss Shapley's second claim, that imposition of a $3 fee for each medical visit violated his constitutional rights. This appeal ensued.

II. DISCUSSION

We review district court dismissals of actions as legally frivolous pursuant to section 1915(d) under an abuse of discretion standard. Gifford v. Tiernan, 670 F.2d 882, 885 (9th Cir.), appeal dismissed and cert. denied, 459 U.S. 804, 103 S.Ct. 28, 74 L.Ed.2d 43 (1982). We examine the deliberate medical indifference and fee imposition claims separately.

A. Deliberate Medical Indifference

The court below held that the deliberate medical indifference claim had been expressly litigated and decided at the 1982 trial, and that the bars of res judicata and collateral estoppel therefore defeated any reasonable probability that Shapley would prevail on the merits in the present action. While recognizing that Shapley's knee operation and his discovery that the delay in surgery had been injurious both occurred subsequent to the prior decision, the court below held that "the gravamen of the medical treatment claims for relief in both cases was the same." Shapley v. Ignacio, No. CV-R-83-232-ECR, slip op. at 4 (D.Nev. Dec. 21, 1983), citing Williams v. Field, 394 F.2d 329, 332-33 (9th Cir.1968).

Shapley argues that he should be allowed to relitigate the issue of deliberate medical indifference because the cause of action in his two suits is not the same for res judicata purposes and the issues are not identical for collateral estoppel purposes.

Two cases involve the same cause of action where rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; where substantially the same evidence is presented in the two actions; where the suits involve infringement of the same right; and where the suits arise out of the same transactional nucleus of facts. Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir.1980) (per curiam). These criteria are mere tools of analysis, however; identity of claims "cannot be determined precisely by mechanistic application of a simple test." Derish v. San Mateo-Burlingame Board of Realtors, 724 F.2d 1347, 1349 (9th Cir.1983), quoting Abramson v. University of Hawaii, 594 F.2d 202, 206 (9th Cir.1979).

In the first action, Shapley advanced three major grievances in connection with his 1978 knee injury: (1) the doctors were withholding his prescriptions; (2) prison officials moved him to a unit further from the mess hall; and (3) prison officials refused to feed him in his cell. The first action involved no claim that prison officials denied or delayed knee surgery.

By contrast, in the present action Shapley alleges that the delay in surgery from May 1978 until March 1983, causing permanent injury to his knee, reflected deliberate medical indifference. Shapley claims that several physicians recommended knee surgery between 1978 and the end of 1982, but that prison officials ignored these recommendations because of an official state policy of delaying all non-emergency surgery.

The court below asserted that Shapley was aware at the time of the 1982 trial that surgery had been recommended, and therefore could have raised the denial of surgery claim in the first action. Since the government is raising the affirmative defense of res judicata, it has the burden to allege facts that show Shapley's opportunity to litigate this claim in the first action. See Fed.R.Civ.P. 8(c).

The record does not establish that Shapley knew surgery had been recommended at the time of the first trial. His complaint simply states that surgery was recommended by various physicians from 1978 until the end of 1982; it does not allege when he became aware of these recommendations. It is entirely possible that Shapley did not learn of the recommendations made between 1978 and the time of the first trial in January 1982 until after the first trial. Moreover, Shapley alleges that two doctors, Dr. McLennan and Dr. Schnaser, recommended knee surgery in the latter half of 1982, several months after the first judgment was entered. The failure of prison authorities to respond to cumulative, repeated recommendations for surgery constituted the heart of Shapley's claim of medical indifference.

Moreover, mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference; even if Shapley were aware that surgery had been recommended when he brought the first action, he would have had no claim for deliberate medical indifference unless the denial was harmful. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Shapley alleges that he did not learn of the consequences of the delay in surgery until after the first action had been litigated. He therefore could not have been expected to include a claim of medical indifference based on the delay in surgery in his first action.

Relitigation of the issue of deliberate indifference to Shapley's medical needs would not impair or undermine the prior judgment. See Harris v. Jacobs, 621 F.2d at 343-44. As noted above, the fact that prison officials were found to...