FILED
NOT FOR PUBLICATION
DEC 7 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID HODGES, No. 20-35066
Plaintiff-Appellant, D.C. No. 6:15-cv-00521-AC
v.
MEMORANDUM*
CORIZON HEALTH, INC.; TRANG
TRAN, RN; ANDREW GRASLEY, MD;
CHERYL CALCAGNO, FNP,
Defendants-Appellees,
and
CLACKAMAS COUNTY; JOSEPH
MCCARTHY, MD; WALTER HARDIN,
DO,
Defendants.
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Submitted December 3, 2020 **
*
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).
Before: TROTT, SILVERMAN, and NR SMITH, Circuit Judges
David Hodges appeals the judgment entered in favor of the defendants in his
action claiming deliberate indifference and medical negligence while he was a
pretrial detainee in Clackamas County Jail. We have jurisdiction pursuant to 28
U.S.C. § 1291 and review de novo the grant of summary judgment. Nev. Dep’t. of
Corr. v. Green, 648 F.3d 1014, 1018 (9th Cir. 2011). We affirm.
The district court appropriately exercised its discretion by denying the
motion for appointment of a third pro bono counsel. Palmer v. Valdez, 560 F.3d
965, 970 (9th Cir. 2009) (setting forth the standard of review and exceptional
circumstances test). Pro bono counsel represented Hodges early in the case,
amended the complaint, conducted extensive discovery, interviewed Hodges’s
cardiologist, and negotiated a settlement while summary judgment was pending.
Counsel turned extensive discovery over to Hodges after he fired her. Hodges then
demonstrated an ability to understand and prosecute his case and partially
prevailed on summary judgment.
The district court appropriately exercised its discretion by declining to
appoint a medical expert after Hodges’s withdrew his motion and informed the
court that he had located a pro bono expert. Claiborne v. Blauser, 934 F.3d 885,
2
901 n.7 (9th Cir. 2019) (explaining the district court’s discretion to appoint a
medical expert).
The district court appropriately exercised its discretion by denying Hodges’s
requests to reopen discovery. Green, 648 F.3d at 1018 (setting forth the standard
of review). Pro bono counsel had deposed the named defendants, obtained
numerous documents from the defendants, and turned the discovery over to
Hodges. Although Hodges wanted to depose his cardiologist, he conceded that pro
bono counsel had interviewed the doctor, who substantially agreed with the
defendants’ expert medical witness.
The district court appropriately exercised its discretion by holding that
Exhibit 16 (website information from the National Institute of Health and a
handout from the American Heart Association) was inadmissible to prove the
medical standard of care for treatment of Hodges’s heart condition in jail. Green,
648 F.3d at 1018 (holding that we review for an abuse of discretion and affirm
“unless [the] evidentiary ruling was manifestly erroneous and prejudicial.”). As a
matter of law, Hodges’s own lay opinion cannot create a genuine issue of material
fact regarding the need for a specific type of medical treatment or establish the
standard of care for negligence. Franklin v. Or. State Welfare Div., 662 F.2d 1337,
1344 (9th Cir. 1981) (holding that “[a] difference of opinion between a prisoner-
3
patient and prison medical authorities regarding treatment does not give rise to a §
1983 claim”); Trees v. Ordonez, 311 P.3d 848, 854 (Or. 2013) (holding that expert
testimony is necessary to establish the standard of care in most Oregon medical
malpractice cases). Contrary to Hodges’s argument, the defense expert, Douglas
Dawley, M.D., sufficiently substantiated his opinion.
The district court appropriately exercised its discretion by giving Hodges an
additional two months, instead of 120 days, to respond to the remaining summary
judgment issues. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir.
2010) (setting forth the standard of review). The motion had been pending for over
two years. In any event, the district court subsequently gave Hodges several
extensions of time to obtain his expert opinion and file a surreply to the motion.
Hodges had more than enough time to respond to the motion.
Summary judgment was proper for the defendants on the deliberate
indifference claim. Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir.
2018) (setting forth the objective deliberate indifference standard for pretrial
detainee medical care claims). At most, the evidence establishes a difference of
opinion between Hodges himself and the medical experts regarding the type of
medical treatment that Hodges should have received in jail. As a matter of law, the
difference of opinion does not rise to the level of deliberate indifference. Sanchez
4
v. Vild, 891 F.2d 240, 242 (9th Cir. 1989), citing Estelle v. Gamble, 429 U.S. 97,
107 (1976); Franklin, 662 F.2d at 1344.
Hodges alleges that he didn’t receive while in jail the angiogram ordered by
his cardiologist before he was transferred to the prison twenty-one days later. He
has not shown that this isolated incident caused any harm. Therefore, he hasn’t
shown deliberate indifference. Shapley v. Nev. Bd. of State Prison Comm’rs, 766
F.2d 404, 407 (9th Cir. 1985) (holding that a “mere delay of surgery, without more,
is insufficient to state a claim of deliberate medical indifference”).
Finally, summary judgment was proper on the state negligence claim.
Hodges was not qualified to opine on the standard of care. Trees, 311 P.3d at 854
(holding that expert testimony is necessary to establish the standard of care in most
Oregon medical malpractice cases). In any event, the medical expert opined that
Hodges received the proper care, did not suffer a heart attack while he was in jail,
and the care provided in jail did not cause Hodges heart damage. Rather, any
damage was caused by the natural progression of his heart disease and could not be
linked to his treatment in jail.
AFFIRMED.
5
David Hodges v. Corizon Health, Inc.
Combined Opinion