Jay Pember v. Al Ramos

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

JAY LYNN PEMBER, No. 15-15627

Plaintiff-Appellant, D.C. No. 2:11-cv-02332-SMM

v.
MEMORANDUM*
AL RAMOS; et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding

Submitted August 16, 2016**
San Francisco, California

Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.

Arizona state prisoner Jay Lynn Pember appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional

claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). We

affirm in part, reverse in part, and remand.

The district court granted summary judgment for defendant Dr. Baird.

However, Defendants’ argument that there was a difference of medical opinion

regarding Pember’s need for surgery was unsupported by admissible evidence. See

Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000)

(“A moving party without the ultimate burden of persuasion at trial . . . has both

the initial burden of production and the ultimate burden of persuasion on a motion

for summary judgment.”); see also Orr v. Bank of Am., NT & SA, 285 F.3d 764,

773 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling

on a motion for summary judgment . . . [and] authentication is a condition

precedent to admissibility.” (citations and internal quotation marks omitted)).

None of the exhibits cited by Defendants were authenticated, and there were no

declarations by Dr. Baird, Dr. Marsella, or anyone else, or any explanation for the

failure to submit such evidence. More broadly, the original recommendation for

surgery was rendered in 2009. The different medical opinion (assuming that the

exhibits could be authenticated) was not rendered until two years later in 2011.

There was no explanation for the delay, during which time there was no opinion

identified to us other than the one recommending surgery. It could be concluded

that the failure to perform the surgery or to obtain any other medical opinion

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during that extended period constituted deliberate indifference. See Jackson v.

McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (plaintiff can show deliberate

indifference if “the course of treatment the doctors chose was medically

unacceptable under the circumstances”). Accordingly, we reverse the judgment for

Dr. Baird and remand for further proceedings.

Because Pember only challenges summary judgment on his deliberate

indifference claim against Dr. Baird, we affirm the remainder of the district court’s

summary judgment.

The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

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