                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 06 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RICKEY EGBERTO,                                  No. 13-16055

              Plaintiff - Appellant,             D.C. No. 3:06-cv-00715-RCJ-
                                                 WGC
 v.
                                                 MEMORANDUM*
NEVADA DEPARTMENT OF
CORRECTIONS; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Robert C. Jones, District Judge, Presiding

                      Argued and Submitted January 9, 2017
                            San Francisco, California

Before: WALLACE, CLIFTON, and M. SMITH, Circuit Judges.

      Appellant Rickey Egberto appeals from the district court’s summary

judgment on his Eighth Amendment deliberate medical indifference claim. We




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse

and remand in part.

      We review the district court’s summary judgment de novo.

Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1247 (9th Cir. 2016). “Whether a

plaintiff’s federal rights were clearly established at the time of the alleged violation

is also a question of law reviewed de novo.” Boyd v. Benton Cty., 374 F.3d 773,

778 (9th Cir. 2004).

      As an initial matter, we note that the district court granted summary

judgment to the Nevada Department of Corrections (Department) on the grounds

that neither a state nor its agencies can be sued under 42 U.S.C. § 1983. We do not

take Egberto to challenge this aspect of the district court’s order, but that portion of

the order was correct, in any case. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

1989) (“The Nevada Department of Prisons, as a state agency, clearly was immune

from suit under the Eleventh Amendment.”).

      Egberto alleges that Appellees violated his Eighth Amendment right to be

free from cruel and unusual punishment by interfering with or denying medical

treatment in four ways: (1) delaying an MRI for five months; (2) refusing to

provide back surgery; (3) denying recommended spinal injections and adequate

medication; and (4) confiscating his walker. We conclude that Egberto has raised


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triable issues of fact regarding the MRI, spinal injections, medication, and walker,

but not the surgery.

      The government has an “obligation to provide medical care for those whom

it is punishing by incarceration,” and “deliberate indifference to serious medical

needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’

proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 103–04

(1976) (internal citation omitted), quoting Gregg v. Georgia, 428 U.S. 153, 173

(1976). This indifference can be “manifested by prison doctors in their response to

the prisoner’s needs or by prison guards in intentionally denying or delaying access

to medical care or intentionally interfering with the treatment once prescribed.” Id.

at 104–05 (footnotes omitted).

      Our court employs a two-part test for deliberate indifference. “First, the

plaintiff must show a serious medical need by demonstrating that failure to treat a

prisoner’s condition could result in further significant injury or the unnecessary

and wanton infliction of pain. Second, the plaintiff must show the defendant[s’]

response to the need was deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d

1113, 1122 (9th Cir. 2012), quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

2006).




                                          3
      As to the first part, we have identified three situations in which a medical

need is serious: (1) “[t]he existence of an injury that a reasonable doctor or patient

would find important and worthy of comment or treatment”; (2) “the presence of a

medical condition that significantly affects an individual’s daily activities”; or

(3) “the existence of chronic and substantial pain.” McGuckin v. Smith, 974 F.2d

1050, 1059–60 (9th Cir. 1992), overruled in part on other grounds by WMX

Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). Egberto’s medical

scans and evaluations are objective evidence implicating at least the first and third

situations, since examining doctors found his ailments “worthy of comment [and]

treatment,” and Doctor Long identified the pain as both “excruciating” and

“chronic.” Appellees’ competing evidence concerning the source and extent of this

pain—including Doctor Long’s late revised opinion that Egberto is

malingering—only creates a factual question for the jury to resolve. On summary

judgment, though, “we must draw all justifiable inferences in favor of the

nonmoving party, including questions of credibility and of the weight to be

accorded particular evidence.” Masson v. New Yorker Magazine, Inc., 501 U.S.

496, 520 (1991), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Viewing the evidence in the light most favorable to Egberto, he has raised a




                                           4
genuine dispute of material fact as to whether his back pain constitutes a serious

medical need.

      Moving to the second part of the analysis, Egberto’s evidence also creates a

genuine dispute of material fact as to whether Appellees were deliberately

indifferent to his serious medical need. “A prison official is deliberately indifferent

under the subjective element of the test only if the official ‘knows of and

disregards an excessive risk to inmate health and safety.’” Colwell v. Bannister,

763 F.3d 1060, 1066 (9th Cir. 2014), quoting Toguchi v. Chung, 391 F.3d 1051,

1057 (9th Cir. 2004). “This ‘requires more than ordinary lack of due care.’” Id.,

quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994). “[T]he official must both be

aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.” Id., quoting Farmer, 511

U.S. at 837.

      Egberto first complains of a delay in receiving an MRI of his back. Doctor

Long recommended the MRI in February 2006, but Egberto did not receive it until

July of that year. Appellees have not explained this delay, and the record raises

questions as to their motivation. For instance, Egberto’s MRI appointment on

March 13 was cancelled because he was transferred to another prison that day,

supposedly for an impending court appearance. But the appearance for which he


                                           5
was transferred did not occur until April 5, and was not even scheduled until ten

days after the transfer. There was thus no objective need shown to transfer him on

the day of the MRI. Considering this fact in light of Egberto’s lengthy disciplinary

history and the Department’s repeated attempts to transfer him out of the state, we

conclude that a reasonable jury could find that prison officials interfered with

Egberto’s treatment for non-medical reasons, such as personal animus, which can

constitute deliberate indifference. See, e.g., Jackson v. McIntosh, 90 F.3d 330, 332

(9th Cir. 1996).

      The delay alone, however, is not enough to make out an Eighth Amendment

claim; Egberto must also show that it caused him further harm. See Berry v.

Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994). When Egberto’s back injury was first

diagnosed in 1999, a CT scan revealed the involvement of two discs in his spine.

By the time he received the MRI in July 2006, four discs were involved. Although

there is no evidence as to how many discs were affected at the time Doctor Long

ordered the MRI, Egberto is entitled to all reasonable inferences in his favor at the

summary judgment stage. This includes an inference that at least some of the

additional disc involvement occurred while he was waiting to receive the MRI.

Accordingly, the district court erred by granting summary judgment on Egberto’s

claim as it relates to the MRI.


                                          6
      Egberto’s remaining allegations concern the outright denial of treatment.

“An inmate challenging denial of treatment must [show] that the denial ‘was

medically unacceptable under the circumstances,’ and made ‘in conscious

disregard of an excessive risk to [the inmate]’s health.’” Rosati v. Igbinoso, 791

F.3d 1037, 1039 (9th Cir. 2015), quoting Jackson, 90 F.3d at 332.

      Regarding the failure to provide back surgery, Egberto has not shown that

surgery was medically necessary. The two medical evaluations he cites merely

suggested that surgery might be required, contingent on future evaluations and the

efficacy of other treatments. There is no other evidence to support this aspect of

Egberto’s claim, so summary judgment was appropriate here.

      Egberto next alleges that prison officials denied him prescribed spinal

injections. Although a doctor recommended the injections, there is no evidence that

Egberto ever received them. Deliberate indifference may be found “where prison

officials and doctors deliberately ignore[ ] the express orders of a prisoner’s prior

physician for reasons unrelated to the medical needs of the prisoner.” Jett, 439 F.3d

at 1097, quoting Hamilton v. Endell, 981 F.2d 1062, 1066–67 (9th Cir. 1992). A

jury could reasonably infer from Appellees’ unexplained failure to provide

recommended treatment that they did just that; thus the district court should not

have granted summary judgment on this aspect of Egberto’s claim.


                                           7
      Likewise, a reasonable jury could find that Appellees were deliberately

indifferent by denying Egberto adequate medication. Prison officials violate the

Eighth Amendment when they “ignore[] the instructions of the prisoner’s treating

physician or surgeon” when providing prescribed medication. Wakefield v.

Thompson, 177 F.3d 1160, 1164–65 (9th Cir. 1999). Doctors recommended

medication for Egberto’s back pain on several occasions, but there is evidence

suggesting that the medication Appellees provided was inadequate. Indeed, a

prison doctor informed him that they were still working on developing a “safe and

effective medication regimen” almost a year and half after the original

recommendation. Given Egberto’s constant complaints of pain arising from the

alleged deprivation of medication, he has shown enough to withstand summary

judgment.

      Finally, Egberto argues that Appellees were deliberately indifferent to his

medical needs when they confiscated his walker. As with the spinal injections and

medications, a doctor recommended that Egberto use the walker, and he did so

without incident for a few months before it was confiscated upon his transfer to a

new prison. Despite doctors’ subsequent recommendations that he use a walker,

prison authorities consistently denied his requests for one.

      Summary judgment on this aspect of the claim was error because Appellees’


                                          8
proffered security justification for confiscating the walker, which the district court

credited, is itself a disputed fact. The record shows that Egberto committed no

infractions between the time the walker was issued and when it was confiscated,

and that his only violent infractions up to that point long predated the use of the

walker. Because nothing changed with respect to Egberto’s potential as a security

threat between the issuance of the walker and its confiscation, a reasonable jury

could infer that, as with the MRI, Appellees denied him the walker for other

reasons. Since this denial ran counter to “the instructions of [the] prisoner’s

treating physician,” it could support a finding of deliberate indifference. See

Wakefield, 177 F.3d at 1165.

      We also reject the district court’s alternative holding that Appellees are

entitled to qualified immunity, which is appropriate only when a plaintiff cannot

show that the defendants violated a clearly established constitutional right. Hamby

v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016). As explained above, a

reasonable jury could conclude that Appellees delayed or denied recommended

treatment for non-medical reasons, including personal animus. It was clearly

established during the relevant time period that such conduct would violate

Egberto’s Eighth Amendment right. See Wakefield, 177 F.3d at 1165; Jackson, 90

F.3d at 332. Accordingly, Appellees cannot avail themselves of immunity at this


                                           9
juncture.

      In sum, we conclude that Egberto has adduced sufficient evidence—both

objective and subjective—to create disputes of material issues of fact with respect

to whether the delayed MRI and the alleged denials of spinal injections,

medication, and a walker violated his constitutional right. Accordingly, we reverse

the district court’s summary judgment on those aspects of Egberto’s Eighth

Amendment claim as to all defendants other than the Department. We affirm,

however, the entry of summary judgment as to the denial of back surgery. Each

party shall bear its own costs.


      AFFIRMED in part, REVERSED and REMANDED in part.




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