                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 19 2010

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




                            FOR THE NINTH CIRCUIT



ROBERT M JOHNSON,                                No. 08-16014

               Plaintiff - Appellant,            D.C. No. 2:06-CV-00821-MCE-
                                                 EFB
  v.

ARNOLD SCHWARZENEGGER,                           MEMORANDUM *
RODERICK HICKMAN; ALVARO C.
TRAQUINA; TOM L. CAREY;
HUGHEY, Head of Pharmacy; NAKU,
Pharmacist in Charge,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                  Morrison C. England, Jr., District Judge, Presiding

                             Submitted January 13, 2010 **
                               San Francisco, California

Before:        KOZINSKI, Chief Judge, HUG and CLIFTON, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                                 page 2

      We reverse the summary judgment entered by the district court in favor of

Defendants Traquina and Naku, and we affirm the summary judgment in favor of

Defendant Hughey.

      The district court’s order appears to accept as true statements made in

declarations submitted by Defendants that are disputed by Plaintiff. For example,

the Findings and Recommendations (F&R) adopted by the district court stated that

“there was no interruption of his Lactulose refills from June 2005 to October 29,

2005.” There was, however, conflicting evidence as to that issue. The F&R said

that “Plaintiff did not file any inmate 602 complaints or otherwise complain to any

of the doctors herein (or to anyone else) that his medication was not being timely

delivered at any time from June 2005 to October 29, 2005 (the date that exhibits in

his complaint suggest he slipped into a coma).” But a 602 form in the record

shows that on July 1, 2005, Plaintiff complained that he had been deprived of his

medication for three days because he ran out on June 28.

      Similarly, the F&R appears to rely upon a statement in Naku’s declaration to

the effect that Plaintiff had acknowledged he received his medication “like

clockwork” from June until August 25, 2005. The declaration Plaintiff submitted

in opposition to summary judgment explicitly denies that he ever made that

statement to Naku, and goes on to cite his efforts to pursue his inmate appeal
                                                                                  page 3

throughout June, July, and August as support for his contention that there were

ongoing failures to provide him with the prescribed dosage of medication. In the

face of such conflicting evidence, summary judgment based on the premise that

Plaintiff was not in fact deprived of his medications after June 2005 was

inappropriate.

      Summary judgment also appears to have been granted based upon a

conclusion that the named Defendants were not responsible for any interruption in

Plaintiff’s medication. Based on the record, that was true for Defendant Hughey,

so summary judgment in her favor was proper. Whether that was true for the other

defendants is a matter of genuine dispute.

      Dr. Traquina was the chief medical officer at CSP Solano. In his

declaration, he generally disclaimed personal responsibility for Plaintiff’s care, but

that appears to be at least somewhat inconsistent with his acknowledged role as

chief medical officer of the facility. As a prisoner, Plaintiff was not at liberty to

turn to just anyone for medical care. Presumably someone within the prison was

responsible for ensuring that a prisoner transferred to CSP Solano from another

prison would continue to receive necessary medications prescribed at the previous

facility. In the absence of any other identified person, it is appropriate for Plaintiff

to look to the chief medical officer. Moreover, Dr. Traquina acknowledged
                                                                                  page 4

receiving correspondence from Plaintiff’s sister concerning Plaintiff’s failure to

receive prescribed medication regularly. Dr. Traquina’s declaration says that as

the responsible prison official responding to Plaintiff’s Second Level Appeal, he

learned that Plaintiff’s needs had been “met” and that he “had received his

medications, as ordered and without delay, since June 2005.” But that Second

Level Appeal included Plaintiff’s July 1 statement, described above, that he had

been without his medication for at least three days, starting on June 28. The record

contains enough to present a triable issue of fact regarding Dr. Traquina’s

knowledge about and responsibility for Plaintiff’s care.

      Naku’s declaration acknowledged that she worked at CSP Solano as a

licensed pharmacist, stated that she interviewed Plaintiff in June and August 2005,

and said that she used her best efforts to ensure that Plaintiff’s prescriptions were

filled and that he would automatically receive the proper amount of medication

when his prescription needed to be refilled. If, as Plaintiff has stated under oath, he

suffered interruptions in his medication supply, there is a triable issue as to

defendant Naku’s responsibility.

      Failure to provide medication to prevent a life-threatening condition may

amount to deliberate indifference to a serious medical need. See Gibson v. County

of Washoe, 290 F.3d 1175, 1194 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122,
                                                                                   page 5

1132 (9th Cir. 2000) (en banc); Wakefield v. Thompson, 177 F.3d 1160, 1164–65

(9th Cir. 1999). To be sure, it is also possible that any such failure does not violate

the Eighth Amendment on the facts of a particular situation. Proof of medical

malpractice or even gross negligence does not suffice to establish a constitutional

violation. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). The

current record does not permit resolution of this issue on summary judgment.

      The district court also concluded that Plaintiff failed to present a genuine

issue of fact as to whether defendants’ alleged indifference was the actual and

proximate cause of his subsequent suffering and lapse into a coma. The F&R

relied on Traquina’s assertion that Plaintiff’s coma was a natural result of his

disease and had nothing to do with the interruptions in Plaintiff’s medication

supply. But Plaintiff’s evidence shows he had abnormally high blood-ammonia

levels at least once while he claims he wasn’t properly medicated. There is

evidence in the record attributing his deterioration to the irregular medication. The

evidence is admissible. Fed. R. Evid. 803(4), 805. There is a genuine issue as to

whether plaintiff was harmed by deliberate indifference, as distinguished from an

inadvertent or merely negligent failure to provide medical care. Jett v. Penner, 439

F.3d 1091, 1096 (9th Cir. 2006).
                                                                      page 6

      Summary judgment for Traquina and Naku on plaintiff’s Eighth Amendment

claim was therefore inappropriate.

      Each side to bear its own costs.

      AFFIRMED IN PART; REVERSED IN PART; REMANDED.
