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NOT FOR PUBLICATION DEC 27 2010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
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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,
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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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