NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 5 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WINIFRED JIAU, No. 22-15576
Plaintiff-Appellant, D.C. No. 4:13-cv-04231-YGR
v.
MEMORANDUM*
RANDY L. TEWS, Warden, FCI-Dublin,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted October 5, 2023**
Before: BENNETT, SUNG, and H.A. THOMAS, Circuit Judges.
Former federal prisoner Winifred Jiau appeals pro se from the district court’s
grant of summary judgment to defendant Warden Randy L. Tews in her action
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. We
*
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).
review de novo. Nunez v. Duncan, 591 F.3d 1217, 1222 (9th Cir. 2010). We
affirm.
Prison officials sued for damages under Bivens are protected by qualified
immunity unless their conduct “violate[s] clearly established statutory or
constitutional rights of which a reasonable person would have known.” Wilson v.
Layne, 526 U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Because the facts alleged by Jiau do not “make out a violation of a
constitutional right,” Pearson v. Callahan, 555 U.S. 223, 232 (2009), we need not
consider whether any violation was clearly established. To maintain an Eighth
Amendment claim based on prison medical treatment, Jiau must first “show a
‘serious medical need’ by demonstrating that ‘failure to treat [her] condition could
result in further significant injury or the ‘unnecessary and wanton infliction of
pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting 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)). Jiau must also
show that “the defendant’s response to the need was deliberately indifferent” by
demonstrating (1) “a purposeful act or failure to respond to a prisoner’s pain or
possible medical need” and (2) “harm caused by the indifference.” Id. (citing
McGuckin, 974 F.2d at 1060).
Even assuming that Jiau has demonstrated a serious medical need, the facts
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as viewed in the light most favorable to Jiau do not show that Warden Tews
purposefully failed to respond to that need. Jiau was taken to the emergency room
after experiencing a cardiac episode in August 2012, approved for a cardiology
consultation in July 2013, and taken to a cardiac clinic in November 2013. And
Jiau does not provide evidence to support her contention that the cardiology
consultation was delayed or that Warden Tews was involved in any delay.
Moreover, Warden Tews’ “reasonabl[e] reli[ance] on the expertise of the
prison’s medical staff” does not amount to acting with deliberate indifference.
Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1084 (9th Cir. 2013). Jiau
was prescribed Diltiazem by a prison nurse. And prison medical staff did not
express concerns about any work limitations related to Jiau’s work assignment.
Finally, Jiau argues that Warden Tews acted indifferently toward her medical
needs by failing to place her in a residential reentry center. But Jiau does not
provide any evidence demonstrating that she would have been eligible for
additional medical care in a residential reentry center placement and does not
contest evidence provided by Warden Tews that residents of residential reentry
centers were required to be medically stable.
Jiau’s request for appointment of pro bono counsel, set forth in the opening
brief, is denied.
AFFIRMED.
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