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John Oliver Snow v. E. K. Mcdaniel

May 25, 2012

JOHN OLIVER SNOW, PLAINTIFF-APPELLANT,
v.
E. K. MCDANIEL, IN HIS OFFICIAL CAPACITY AS WARDEN AT ELY STATE PRISON (ESP); DEBRA BROOKS, IN HER OFFICIAL CAPACITY AS ASSOCIATE WARDEN FOR OPERATIONS AT ESP; ADAM ENDEL, IN HIS OFFICIAL CAPACITY AS ASSOCIATE WARDEN FOR PROGRAMS AT ESP; ROBERT BANNISTER, M.D. MEDICAL DIRECTOR FOR NEVADA DEPARTMENT OF CORRECTIONS; STEVEN MACARTHUR; MAX CARTER, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Nevada Robert Clive Jones, Chief District Judge, Presiding D.C. No. 3:08-cv-00046-RCJ-VPC

The opinion of the court was delivered by: B. Fletcher, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted October 13, 2011 Submission Withdrawn October 24, 2011

Resubmitted May 25, 2012 San Francisco, California

Before: Betty B. Fletcher, Stephen Reinhardt, and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge B. Fletcher

OPINION

John Snow, a 69-year-old death-row inmate, appeals the grant of summary judgment denying his claims for violations of his rights under the Eighth Amendment. Snow claims that the doctors and wardens in the Nevada Department of Corrections were deliberately indifferent to his medical needs; specifically, the diagnosis by more than one orthopedic surgeon that Snow needed surgery to replace both of his hips, which have degenerated so severely that Snow has excruciating pain and can barely walk. Snow's medical records and statements by physicians and specialists in the records, and all reasonable interferences in favor of Snow drawn from the records, suggest that the defendants' actions violated Snow's Eighth Amendment rights. We have jurisdiction under 28 U.S.C. § 1291. We reverse in part, affirm in part, and remand.

I

Because this case was resolved at summary judgment, we present the facts in the light most favorable to Snow as the non-moving party. RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1051 n.1 (9th Cir. 2002).

Snow is a prisoner in the custody of the Nevada Department of Corrections ("NDOC"). Before he began experiencing chronic hip pain in 2004, Snow was able to walk and exercise normally. Today, Snow cannot exercise and he needs assistance just to get up off of his bunk. Even with help, Snow can barely walk because of the pain caused by his degenerative hip disease.

Snow first complained to NDOC medical staff about his hip and leg pain in 2005. Steven MacArthur, M.D., a NDOC staff physician, examined Snow in late 2005. He told Snow that he would schedule an appointment for Snow to see an orthopedic surgeon about his hip and leg pain. Dr. MacArthur never put anything into Snow's chart about a referral, however, and never scheduled an appointment. In January 2006, in response to a medical kite (i.e., a written request) submitted by Snow, NDOC medical staff prescribed ibuprofen and ordered hip x-rays. Eric Goldberg, M.D., examined the x-rays in March 2006. The x-rays showed that Snow had three pins in his left hip. Investigation suggested this had been done as a child to stabilize a slipped capital epiphysis. Dr. Goldberg diagnosed Snow as having severe degenerative changes in both of his hips. A staff nurse saw the x-rays and told Snow that the amount of degeneration and arthritis shown by the x-rays was "very impressive." To address the hip pain and degeneration, NDOC medical staff prescribed Neurontin, a neuropathic pain reliever, and Tums.

An orthopedic surgeon finally examined Snow in September 2006. Mark Rhodes, M.D., an independent medical consultant, confirmed that Snow's hips exhibited severe degeneration. Based on his observations, Dr. Rhodes guessed that Snow was in distressing pain due to the condition of his hips. Based on his clinical findings, Dr. Rhodes expected Snow to suffer from excruciating and unbearable pain. He was surprised Snow was able to walk at all. Dr. Rhodes prescribed pain relievers, and stated that in the long term Snow needed a bilateral total hip arthroplasty ("THA") to replace both hip joints. Mark Bishop, M.D., Snow's NDOC treating physician, reviewed Dr. Rhodes's notes and ordered pain relievers for Snow.

Snow saw Dr. Rhodes again in January 2007. Dr. Rhodes wrote in his notes that Snow "can barely walk" due to his degenerated hips and that "[t]here is no option here other than surgery for relief (THA Bilateral)." Dr. Rhodes indicated that Snow's condition was an "emergency," and that although it significantly affected Snow's quality of life, it was not life-threatening. As a short-term measure to offer Snow relief until he was able to get hip surgery, Dr. Rhodes prescribed a nonsteroidal anti-inflammatory drug ("NSAID") called Indocin.

Dr. Bishop ordered the Indocin and referred the recommendation for surgery to the NDOC Utilization Review Panel ("URP"). The URP is composed of six NDOC physicians who are board-certified in family medicine or other similar disciplines, and includes the NDOC Medical Director. The URP reviews requests for significant medical procedures by outside providers, such as surgery for an inmate. The URP denied the "emergency" recommendation for Snow to undergo hip surgery because "it was not a life[-]threatening situation." The URP stated only that it was "[o]kay to treat pain" but that there would be "[n]o joint replacements."

Snow continued to have significant hip pain, and sporadically received the pain medication and Indocin that had been prescribed for him. In March 2007, Warden E.K. McDaniel approved a request from the medical staff to prohibit corrections officers from using ankle restraints on Snow or from ordering Snow to kneel. The request states that Snow "has frozen hips [and] joints" and that he "needs hip replacement."

In July, Dr. Bishop referred Snow to NDOC's Regional Medical Facility, a facility that provides full-time medical care for inmates, because Snow's creatinine levels were very high. Dr. Bishop concluded that Snow's creatinine levels were going up because of the NSAIDs he was taking to manage his severely degenerated hips. Dr. Bishop submitted an "urgent" request to the URP for Snow to receive hip surgery, writing that Snow "[n]eeds hip surgery[;] creatinine rapidly rising on needed pain meds." In contrast to the request for surgery in January, Dr. Bishop changed his mind and stated that Snow's medical problem was "potentially life threatening."

David Mar, M.D., another NDOC physician, examined Snow two weeks later and prescribed Tylenol and an analgesic balm for his pain. Dr. Mar decided that nothing else was needed. The URP reviewed and rejected the recommendation for hip surgery.

Robert Bannister, M.D., the NDOC Medical Director, noted in Snow's medical chart that NSAIDs can be nephrotoxic when combined with other medications taken regularly by Snow. Dr. Bannister ordered an increase in the dosage of Tylenol Snow received each morning and additionally prescribed Tylenol with codeine to take every night. Although Snow could not kneel or exercise outside and had to use a wheelchair to go to the visiting area, Dr. Bannister concluded that Snow was "functioning satisfactorily in his current living situation and in performance of any required activities." Later, because the NDOC could not provide Snow with enough of the analgesic balm prescribed by Dr. Mar, NDOC medical staff supplemented Snow's medication regimen with oxyco-done, a powerful narcotic. NDOC medical staff subsequently prescribed a regular dose of oxycodone to allow Snow to be able to get through the day.

In 2008, Snow filed a complaint alleging several 42 U.S.C. § 1983 claims. In his first amended complaint, Snow alleges that prison officials, acting in their individual and official capacities, violated his rights under the Fourth, Eighth, and Fourteenth Amendments. Count I of the first amended complaint requests declaratory and injunctive relief to remedy a custom or policy of inappropriate treatment of serious medical conditions, such as his hip condition. Count II requests damages for the defendants' deliberate indifference to Snow's medical needs and their deliberate interference with recommended medical treatment. Count III requests damages under the same cause of action as Count I. The rest of Snow's claims were dismissed by the district court after the defendants filed a motion to dismiss.

After Snow filed his lawsuit, the defendants sent Snow to see another orthopedic surgeon. Richard Long, M.D., described Snow's condition from 2004 to 2008:

He has progressively worsened to where at this time he is able to walk only a few feet unsupported. He has not left his building to go outside in the yard to exercise for two years. He can get down a flight of stairs, hanging on to the banister. He can walk probably 50 feet, to a shower and back unsupported, but with difficulty. He is able to ...


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