Mark Vinzant v. Jesus Fernandez

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARK A. VINZANT, No. 15-56287

Plaintiff-Appellee, D.C. No.
5:07-cv-00024-VAP-AJW
v.

UNITED STATES OF AMERICA; et al., MEMORANDUM*

Defendants,

and

JESUS FERNANDEZ, M.D.; et al.,

Defendants-Appellants.

MARK A. VINZANT, No. 15-56344

Plaintiff-Appellee, D.C. No.
5:07-cv-00024-VAP-AJW
v.

UNITED STATES OF AMERICA; et al.,

Defendants,

and

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
S. A. HOLINCEK, Deputy Warden,

Defendant-Appellant.

MARK A. VINZANT, No. 15-56361

Plaintiff-Appellant, D.C. No.
5:07-cv-00024-VAP-AJW
v.

UNITED STATES OF AMERICA; et al.,

Defendants,

and

S. A. HOLINCEK, Deputy Warden,

Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding

Argued and Submitted January 17, 2017
San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit
Judges.

Jesus Fernandez, Pratap Mesra, Louis Sterling, Stacey Allen, and S.A.

Holincek (collectively, “the officers”) appeal the district court’s denial of their

motion for summary judgment on qualified immunity as to Mark Vinzant’s Eighth

2
Amendment deliberate indifference claim brought under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). We have

jurisdiction under 28 U.S.C. § 1291 to review the “purely legal” question of

qualified immunity, Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., 605 F.3d 703,

707 (9th Cir. 2010), and we reverse.

We review the denial of qualified immunity with special attention to the

recent Supreme Court case White v. Pauly, No. 16-67, 2017 WL 69170 (U.S. Jan.

9, 2017), which was decided after the district court’s summary judgment order

here. We note that Vinzant received continuous medical care and Dr. Fernandez’s

prescription was for non-emergency treatment. The short claimed delay in

providing the physical therapy appointment, which Vinzant declined to attend, did

not violate clearly established law. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2023

(2014) (noting that for a defendant to violate a clearly established right, “the right’s

contours [must have been] sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was violating it”). The officers

are entitled to qualified immunity on Vinzant’s deliberate indifference claim, and

summary judgment should be entered for them.

Vinzant cross-appeals the district court’s ruling on the scope of this court’s

3
mandate in Vinzant v. United States (Vinzant I), 584 F. App’x 601 (9th Cir. 2014).

The district court appropriately understood the mandate to confine Vinzant’s claim

to the post-prescription period. In Vinzant I, we reversed only the district court’s

conclusion that Vinzant had waived his post-prescription deliberate indifference

claim. Id. at 602. We decline to revisit the mandate, as Vinzant I is not “clearly

erroneous [such that] its enforcement would work a manifest injustice.” See

Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir. 1995). We reject the cross-appeal

and affirm the district court’s determination with respect to this ruling.

AFFIRMED IN PART, REVERSED IN PART.

Each party shall pay its own costs on appeal.