                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 27 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PHILLIP J. LYONS,                                No. 09-17294

              Plaintiff - Appellant,             D.C. No. 3:05-cv-00400-JCM-
                                                 VPC
  v.

PATRICIA LEONHARDT; et al.,                      MEMORANDUM *

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                     Argued and Submitted December 7, 2010
                            San Francisco, California

Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.




       Phillip J. Lyons (“Lyons”), a Nevada state inmate, timely appeals two

district court orders granting summary judgment against him with respect to civil

rights claims that he brought pursuant to 42 U.S.C. § 1983. Lyons alleges that



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
defendants, Nevada prison officers and medical personnel, violated his First

Amendment right to petition the government for redress of his grievances and his

Eight Amendment right to be free from excessive force and deliberate indifference

to his serious medical needs. His claims under the Nevada Constitution are waived

on appeal because he did not raise them in the district court.

      We affirm the grant of summary judgment on the excessive force claim, on

the First Amendment claim as to defendant Ollie Powe, and on the deliberate

indifference claim as to defendants Patricia Leonhardt, Theodore D’Amico, Jackie

Crawford, James Cox, Joseph Ferro, and Leonard Vare. We reverse on the

deliberate indifference claim as to defendant Dr. John Scott, and on the First

Amendment claim as to defendants Jay Barth, Paul Lunkwitz, and Santerren Ward.

      The evidence submitted on summary judgment, viewed in a light most

favorable to the nonmoving party, was sufficient to raise a genuine issue of

material fact as to whether Lyons had a serious medical need arising from the

abrupt cessation of his prednisone medication and whether senior physician Dr.

Scott was deliberately indifferent to that need. See McGuckin v. Smith, 974 F.2d

1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v.

Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (citing Estelle v. Gamble, 429 U.S.

97, 104 (1976)). As to the medical need, the record shows that Lyons had been


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prescribed a steroid, prednisone, for ten years to treat an immune condition, and

that the sudden cessation of that treatment can cause a serious medical condition in

which the body stops producing sufficient amounts of adrenal steroid. Lyons was

refused a prednisone prescription for four days after he advised the medical staff

that his supply of the drug had run out. During that time, he became progressively

more ill with dizziness, chills, stomach cramps, nausea, and a high fever.

      For several days after being advised of Lyons’s condition, Dr. Scott failed to

grant Lyons’s requests to evaluate him in order to renew his prescription.

Ultimately, Dr. Scott saw Lyons at sick call and injected him with “a loading dose”

of Solumedrol, a potent steroid that is used to treat Addison crisis, at which point

Lyons’s symptoms abated. This evidence leads us to conclude that there is a

triable issue of fact as to whether Dr. Scott “den[ied], delay[ed] or intentionally

interfere[d] with [Lyons’s] medical treatment[,]” in violation of Lyons’s

constitutional right to be free from deliberate indifference to serious medical needs.

McGuckin, 974 F.2d at 1059 (quoting Hutchinson v. United States, 838 F.2d 390,

394 (9th Cir. 1988)).

      Summary judgment was proper, however, on Lyons’s deliberate indifference

claims as to Leonhardt, D’Amico, Crawford, Cox, Ferro, and Vare. Lyons does

not present evidence to show that these defendants were aware that the acts or


                                           3
omissions about which Lyons complains would have the effect of putting him at

risk of serious harm. See McGuckin, 974 F.2d at 1060 (holding that mere

“inadvertent [or negligent] failure to provide adequate medical care” alone did not

state a claim under § 1983 (citing Estelle, 429 U.S. at 105)).

      Lyons also alleges constitutional violations arising from a separate prison

incident. He argues that correctional lieutenant Powe and correctional officers

Barth, Lunkwitz, Ward, and John Does 1-4 violated his Eighth Amendment right to

be free from cruel and usual punishment through the use of excessive force

following his filing of an emergency grievance. In addition, he contends that these

officers violated his First Amendment right to petition the government by

retaliating against him for filing grievances and ordering him not to file any further

grievance. Construing the facts in Lyons’s favor, the amount of force that

correctional officers Barth, Lunkwitz, Ward, and Does 1-4 used against him when

they applied handcuffs tightly, pulled him quickly from the floor to his feet, moved

him to a different room, and seated him roughly in a chair, does not, without more,

rise to the level of excessive force. The district court did not therefore err in

granting summary judgment to the defendants on the excessive force claim.

      We reverse on the free speech claim, however. Lyons alleges that, after

being removed from his cell following his filing of a grievance, Lunkwitz, Ward,


                                            4
and Barth yelled curses at him for several minutes before Lunkwitz told him

explicitly not to submit any more grievances. The officer’s intimidating

admonition is in itself sufficient ground to raise a triable First Amendment claim.

See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), abrogated on other

grounds by Shaw v. Murphy, 532 U.S. 223 (2001) (holding that disciplinary rules

that discourage a prisoner from filing a grievance violate the right of access to the

courts). Moreover, Powe stated in his declaration that he had already determined

that Lyons’s complaint was a non-emergency and that the “sole purpose” of

ordering Lunkwitz to Lyons’s cell was “to explain Powe’s determination,” and not

to “calm down a disruptive inmate,” as Lunkwitz alleged. The evidence submitted

on summary judgment therefore establishes a genuine issue of material fact as to

whether the actions taken against Lyons by Lunkwitz, Ward, and Barth constituted

unconstitutional retaliation for his having requested a written response to the denial

of his emergency grievance. See Lewis v. Casey, 518 U.S. 343, 355-56 (1996)

(holding that a prisoner’s inability to file a claim can establish a constitutional

violation of his right to access the courts).

             AFFIRMED IN PART and REVERSED IN PART.




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