Allen Fox v. Garvin

FILED
NOT FOR PUBLICATION MAR 03 2011

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

FOR THE NINTH CIRCUIT

ALLEN JACOBY FOX, No. 08-56118

Plaintiff - Appellant, D.C. No. 2:04-cv-03073-ODW-
CW
v.

GARVIN, Sergeant, individual capacity; MEMORANDUM *
FRAZIER, Dr., individual capacity;
AMINO, individual capacity; REYES,
individual capacity; JORDAN, individual
capacity,

Defendants - Appellees.

Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding

Argued and Submitted February 18, 2011
San Francisco, California

Before: O’SCANNLAIN and TROTT, Circuit Judges, and CAMPBELL, Senior
District Judge.**

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Tena Campbell, Senior United States District Judge
for the District of Utah, sitting by designation.
 Allen J. Fox appeals the district court’s grant of summary judgment to three

police officers, a jail sergeant, and a jail medical doctor in this civil rights action

asserting claims under 42 U.S.C. § 1983. This court has jurisdiction under 28

U.S.C. § 1291. We review the district court’s decision de novo, Morrison v. Hall,

261 F.3d 896, 900 (9th Cir. 2001), and we affirm.

Fox first claims that Officers Jordan, Reyes, and Amino used excessive force

in arresting him. Excessive force claims under the Fourth Amendment must be

evaluated “from the perspective of a reasonable officer on the scene.” Graham v.

Connor, 490 U.S. 386, 396 (1989). From the perspective of a reasonable police

officer in the circumstances presented here, the use of force was reasonable. The

officers received a call that a man suspected of car burglary was detained pursuant

to a citizens’ arrest. When the officers arrived, they saw a man who matched the

description of the suspect fleeing the scene of the crime. The man was being

chased by two other men and was armed with a screwdriver. The officers

reasonably concluded that Fox was the burglary suspect and had broken free of the

two citizens that the officers had been told were holding him.

The fact that Fox complied with the officers’ orders to drop his weapon and

get down on the ground does not render the use of force unreasonable. The

officers’ split-second decision -- to use allegedly rough tactics in handcuffing a

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recently armed and fleeing suspect in the midst of innocent civilians -- was

eminently reasonable.

Fox claims also that the officers, Sergeant Garvin, and Dr. Frazier denied

him access to adequate medical care after his arrest. The Due Process Clause of

the Fourteenth Amendment guarantees a pretrial detainee the right to receive

adequate medical care, and that right is violated if officials are deliberately

indifferent to the detainee’s serious medical needs. Clouthier v. Cnty. of Contra

Costa, 591 F.3d 1232, 1242-43 (9th Cir. 2010). Deliberate indifference exists

when an official knows of and disregards a serious medical condition, i.e, when an

official is “aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists” and actually draws that inference. Farmer

v. Brennan, 511 U.S. 825, 837 (1994).

In his opposition to the defendants’ motion, Fox submitted no evidence that

any of the defendants were subjectively aware of a substantial risk of serious harm

to Fox from his injuries. All of the defendants spoke to or examined Fox within

three hours of his arrest. The officers and sergeant do not have the expertise

required to diagnose broken bones. With respect to the medical doctor, Fox

challenges her conclusion that his injuries did not require x-rays. However,

differences in judgment between an inmate and jail medical personnel regarding

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appropriate diagnosis and treatment are not sufficient to establish deliberate

indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Moreover, Fox

did not submit evidence that any delay in diagnosing his broken bones caused him

serious harm. See Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990).

AFFIRMED.

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