                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 19 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

FOY JAMES CHANDLER,                             No.    17-56402

                Plaintiff-Appellee,             D.C. No.
                                                5:14-cv-01169-JGB-KES
 v.

R. PHILLIP GUTTIERREZ; et al.,                  MEMORANDUM*

                Defendants-Appellants.

                   Appeal from the United States District Court
                       for the Central District of California
                    Jesus G. Bernal, District Judge, Presiding

                       Argued and Submitted March 4, 2019
                              Pasadena, California

Before: WARDLAW and BENNETT, Circuit Judges, and SESSIONS,** District
Judge.

      Foy James Chandler brought this action against various prison

administrators at the Federal Correctional Institute (“FCI”) Victorville over Eighth

Amendment violations he alleges he suffered while incarcerated at FCI Victorville.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
Defendants filed a motion for summary judgment in district court on the grounds

of qualified immunity. The district court denied the motion. We affirm in part and

reverse in part.

      As an initial matter, we address Chandler’s argument that this Court does not

have jurisdiction to review this appeal because Appellants dispute Chandler’s

version of the facts. This Court’s interlocutory appellate jurisdiction under 28

U.S.C. § 1291 to review the denial of qualified immunity is limited to questions of

law. Appellants’ brief acknowledges that the facts must be construed in the light

most favorable to Chandler, but at times contests his facts. However, as clarified at

argument, Appellants are presenting a legal argument that they are entitled to

qualified immunity as a matter of law even assuming Chandler’s version of the

facts. Although the district court found that there are disputed issues of material

fact, this Court has jurisdiction, “construing the facts and drawing all inferences in

favor of [Chandler], to decide whether the evidence demonstrates a violation” of

his Eighth Amendment rights. Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir.

2016).

      We affirm the district court’s determination that Appellants Dr. Ross Quinn,

Physician Assistant (“PA”) Antonia Rogers, and Nurse Lourdes Singh are not

entitled to qualified immunity. Chandler has alleged that Dr. Quinn and PA Rogers

consistently ignored his complaints and symptoms of serious pain because they


                                          2
found Chandler’s requests for medical attention bothersome and they wished to

reduce their workload. According to Chandler, Dr. Quinn and PA Rogers falsely

recorded his symptoms to paint him as a malingering drug addict, even though

Chandler passed multiple drug tests. This included dishonestly recording a fresh

needle mark on Chandler’s arm, and, in the case of Dr. Quinn, telling Chandler’s

father that Chandler was a drug addict and telling Chandler that he would not be

getting further treatment because Chandler had filed a grievance against him.

Additionally, Chandler adduces facts that show that on at least four occasions,

Nurse Singh either refused to see Chandler in his cell or came to Chandler’s cell

and offered no treatment, although she was aware of Chandler’s serious condition.

      These allegations amount to a violation of Chandler’s clearly established

Eighth Amendment rights. Viewing the facts in the light most favorable to

Chandler, a reasonable juror could find that Dr. Quinn, PA Rogers, and Nurse

Singh were deliberately indifferent to Chandler’s serious medical needs. See

Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (holding that interfering

with medical treatment “not because of an honest medical judgment, but on

account of personal animosity” can constitute deliberate indifference). Dr. Quinn,

PA Rogers, and Nurse Singh are not entitled to qualified immunity at this stage of

the proceedings.




                                         3
      We also affirm the district court’s determination that Warden Guttierrez is

not entitled to qualified immunity. Chandler alleges that Warden Guttierrez was

told of Chandler’s condition on at least two occasions and was informed that

Chandler had at one point missed five meals in a row, was unable to leave his cell

to eat or get medical treatment, and had not received adequate medical attention.

According to Chandler, Warden Guttierrez did nothing to remedy these concerns.

Viewing the facts in the light most favorable to Chandler, a reasonable jury could

find that Warden Guttierrez’s failure to respond to Chandler’s request for medical

help when faced with information that he was not receiving medical attention

constituted deliberate indifference. Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir.

2006) (finding that the warden’s failure to respond to the prisoner’s letter detailing

medical staff’s inadequate treatment was sufficient to raise a triable issue of fact

regarding whether the warden was deliberately indifferent).

      We reverse the district court’s finding that Assistant Health Services

Administrator (“AHSA”) Sterling is not entitled to qualified immunity. Chandler

alleges that a correctional officer promised that he would speak to AHSA Sterling,

and that AHSA Sterling participated in the committee that denied Chandler’s MRI

request. Chandler has not adduced facts showing that AHSA Sterling harbored any

animus toward him or that he was actually aware of Chandler’s lack of medical

treatment. Deliberate indifference is a high standard, and even viewing the facts in


                                           4
the light most favorable to Chandler, that standard has not been met with respect to

AHSA Sterling.

      AFFIRMED in part and REVERSED in part.




                                         5
                                                                         FILED
Chandler v. Guttierrez, No. 17-56402                                      JUL 19 2019

BENNETT, Circuit Judge, dissenting in part:                           MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS


      I agree with all but one of the majority’s holdings: that Warden Guttierrez is

not entitled to qualified immunity. The majority relies on Jett v. Penner, 439 F.3d

1091, 1098 (9th Cir. 2006) for the proposition that a reasonable jury could find that

Warden Guttierrez violated Chandler’s constitutional rights. Even assuming a

reasonable jury could make that finding, however, I do not believe that the rights

Warden Guttierrez supposedly violated were clearly established at the time of the

alleged violation. I therefore respectfully dissent from the majority’s holding that

Warden Guttierrez is not entitled to qualified immunity.

                                   *      *     *

      Our review is limited to the “purely legal question” of whether Warden

Guttierrez’s alleged conduct violated Chandler’s clearly established constitutional

rights. Cunningham v. City of Wenatchee, 345 F.3d 802, 807 (9th Cir. 2003).

A.    Warden Guttierrez’s alleged conduct

      Warden Guttierrez’s alleged conduct is as follows. First, Chandler alleges

that, at 11:00 AM on April 12, 2012, Chandler’s cellmate Mark Hanes approached

Warden Guttierrez and other prison staff in the inmate dining hall. Hanes




                                          1
allegedly “informed them of Mr. Chandler’s problem.” 1 Hanes was allegedly told

that Chandler would “be seen by medical.” By 2:00 PM, no one had arrived at

Chandler’s cell, so Hanes pressed an emergency button that alerted prison staff,

who in turn notified medical personnel. A physician’s assistant arrived at

Chandler’s cell forty-five minutes later.

         Second, Chandler alleges that, on April 18, 2012, Hanes spoke to Warden

Guttierrez and a Correctional Lieutenant, and that the Lieutenant said that he had

“reported it” to another lieutenant.2

         Third, Chandler’s parents contacted their Congressman about Chandler’s

medical condition. That Congressman apparently contacted Warden Guttierrez,

and, in response, Warden Guttierrez assured the Congressman that Chandler was

receiving appropriate medical care. Warden Guttierrez also told the Congressman

that Chandler was uncooperative during medical examinations and non-compliant

with some of his treatments.

         Fourth, Warden Guttierrez signed two responses to Chandler’s requests for

administrative remedies. The first request was not related to Chandler’s

backpain—it related to Chandler’s allegation that a prison staff member released




1
 Hanes neither recounted nor recorded any additional details about what he said
during this interaction.
2
    Again, there are no additional details as to this interaction.
                                             2
Chandler’s medical information to his father without permission. Warden

Guttierrez’s response stated that the prison “takes allegations of staff misconduct

seriously,” and that Chandler’s allegations would be reviewed. The second request

related to Chandler’s backpain and included a request to have food and medication

brought to his cell. That request was denied based on prison security and

sanitation policies, as well as the medical care and evaluations Chandler had

already received from medical personnel.

B.    Chandler’s clearly established constitutional rights

      The Supreme Court has “repeatedly told courts—and the Ninth Circuit in

particular—not to define clearly established law at a high level of generality.” City

& Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015). “The dispositive

question is whether the violative nature of particular conduct is clearly

established.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation

marks omitted) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 742 (2011)). As the

“Court explained decades ago, the clearly established law must be ‘particularized’

to the facts of the case. Otherwise, ‘[p]laintiffs would be able to convert the rule of

qualified immunity . . . into a rule of virtually unqualified liability simply by

alleging violation of extremely abstract rights.’” White v. Pauly, 137 S. Ct. 548,

552 (2017) (alteration in original) (citation omitted) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). The Court does “not require a case directly

                                           3
on point, but existing precedent must have placed the statutory or constitutional

question beyond debate.” al–Kidd, 563 U.S. at 741 (emphasis added).

      The majority cites Jett v. Penner, 439 F.3d at 1098—a single, inapposite

Ninth Circuit case—for the proposition that Warden Guttierrez is not entitled to

qualified immunity. But “even if a controlling circuit precedent could constitute

clearly established law in these circumstances, it does not do so here.” Kisela v.

Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting Sheehan, 135 S. Ct. at 1776).

      In Jett, a prisoner (Jett) fell off his bed and fractured his thumb. Jett, 439

F.3d at 1094. Because Jett injured himself on a Saturday, prison staff took him to a

private emergency room, where a doctor gave him a temporary splint and told him

to see a specialist early the following week. Id. Nineteen months passed before

Jett finally saw a specialist—despite his notifying medical staff of his pain,

submitting medical slips, sending letters to prison doctors, filing a formal

grievance, and (as relevant here) sending the prison warden a letter four months

after he fractured his thumb and fifteen months before he finally saw a specialist.

Id. at 1094–95.

      We held that Jett had presented sufficient evidence to raise a triable issue of

fact as to whether the warden was deliberately indifferent to Jett’s medical need,

based on Jett’s allegation that he personally sent a letter to the warden—which the

warden allegedly ignored—fifteen months before Jett finally saw a specialist. See

                                          4
id. at 1098. We noted that the warden would be liable for deliberate indifference if

he “knowingly fail[ed] to respond to an inmate’s requests for help.” Id. (emphasis

added).

C.    Analysis

      Jett did not place beyond debate the constitutionality of any of Warden

Guttierrez’s alleged conduct. First, it is not unconstitutional for a warden to defer

to the judgment of healthcare professionals or rely on prison policy in denying a

request for an administrative remedy. See, e.g., Peralta v. Dillard, 744 F.3d 1076,

1086–87 (9th Cir. 2014); McGee v. Adams, 721 F.3d 474, 483 (7th Cir. 2013).

Chandler does not argue otherwise.

      In addition, Chandler received medical care less than three hours after the

very first conversation that Hanes allegedly had with Warden Guttierrez. Nothing

in Jett, a case in which the warden allegedly completely ignored a prisoner’s letter,

remotely establishes that a warden must respond to a secondhand report of a

prisoner’s medical needs within three hours.

      What’s more, Chandler does not allege that he ever attempted to contact

Warden Guttierrez directly, by letter or otherwise. And, in my view, a single case

with a single sentence saying that wardens are liable for “knowingly fail[ing] to

respond to an inmate’s requests for help,” Jett, 439 F.3d at 1098 (emphasis added),




                                          5
does not place beyond debate that a warden will be similarly liable for failing to

respond to secondhand reports of a third-party inmate’s problems.

      Responding to firsthand prisoner requests and responding to secondhand

reports of third-party prisoner requests are not the same “particular conduct.” See

Mullenix, 136 S. Ct. at 308. The difference between firsthand and secondhand

communication is important, especially in the prison context. Wardens oversee

entire prison populations and staff, and they shouldn’t be expected to react the

same to a direct complaint as opposed to a report of a problem from a third party.

And even if that is untrue (i.e., even if wardens should be expected to react the

same), neither the Supreme Court nor this court has ever said so. Similarly,

because wardens are not doctors, they must rely on medical professionals to

oversee the health of prisoners. See Peralta, 744 F.3d at 1086.

      Chandler does not dispute that Warden Guttierrez made himself available at

the prison dining facility during lunchtime, Monday through Friday, so that “any

inmate” who wanted to speak to him about “any topic” could do so. Nor does

Chandler dispute that, on a typical day, thirty to forty inmates waited in line to

speak to Warden Guttierrez at lunchtime. That is likely between 150 and 200

conversations in an average week, and likely more than 7,000 conversations in an

average year—at lunchtime alone.




                                           6
      Under the majority’s holding, each prisoner, during each conversation, can

request help for medical issues on behalf of not only himself but also any other

prisoner or prisoners, and a warden must—as a matter of constitutional law—

follow up with each secondhand request or else risk potential personal monetary

liability. No case clearly establishes this.

      The majority’s holding also seems counterproductive. In-person lunchtime

communication between wardens and prisoners decreases the probability that

prisoners’ requests for help will be accidentally overlooked or intentionally

ignored. That is a good thing. But the majority’s holding, by expanding the kinds

of communications that could subject wardens to personal liability, could decrease

such communications and thus work at cross purposes to the interests served by

such communications.

      Even assuming the Congressman’s letter is relevant to the legal analysis in

this case, whereas the warden in Jett was alleged to have ignored the prisoner’s

letter, here Warden Guttierrez did not ignore the Congressman but in fact contacted

the Congressman and reassured him that, based on the reports of prison medical

professionals, Chandler was receiving proper medical care. Even if we could

somehow extend the Jett holding to a Congressman’s thirdhand report of a

prisoner’s medical needs—and I do not think that we can—Warden Guttierrez did

not ignore that communication.

                                           7
      Thus, the holding of Jett does not apply to the Warden’s alleged conduct in

this case, even when viewed in the light most favorable to Chandler. The

majority’s holding to the contrary defines whatever right we clearly established in

Jett at far too high a level of generality. See Sheehan, 135 S. Ct. at 1775–76.

      I respectfully dissent.




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