|||U.S. Court of Appeals, Ninth Circuit
|||177 F.3d 1160, 1999.C09.42310 <http://www.versuslaw.com>,
99 Cal. Daily Op. Serv. 3984
|||May 27, 1999
|||TIMOTHY E. WAKEFIELD, PLAINTIFF-APPELLANT,
JOHN THOMPSON, PAROLE AGENT; JAMES GOMEZ, DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS; DANIEL VASQUEZ, EX-WARDEN, SAN QUENTIN PRISON; JOHN DUPRE, STAFF PSYCHIATRIST, SAN QUENTIN PRISON; AND JOHN DOE, CORRECTIONAL OFFICER, SAN QUENTIN PRISON, DEFENDANTS-APPELLEES.
|||Appeal from the United States District Court for the Northern District
of California Fern M. Smith, District Judge, Presiding D.C. No. CV-95-00137-FMS
|||Counsel Timothy E. Wakefield, pro se, Vacaville, California, for the plaintiff-appellant.
Bruce M. Slavin, Deputy Attorney General, San Francisco, California, for
|||Before: Phyllis Kravitch,*fn2 Stephen Reinhardt, and Thomas G. Nelson,
|||The opinion of the court was delivered by: Reinhardt, Circuit Judge
|||Submitted February 8, 1999*fn1
San Francisco, California
|||Timothy Wakefield appeals the district court's dismissal of his S 1983
action against John Doe, a correctional officer at San Quentin Prison. Wakefield
alleges that Doe violated his Eighth Amendment rights by refusing to provide
him with prescription psychotropic medication upon his release from prison.
He asserts that Doe exhibited deliberate indifference to his serious medical
needs. Because we find that Wakefield has stated a cause of action upon
which relief might be granted, we reverse the district court's dismissal
of Wakefield's action against Doe, and remand for further proceedings in
the district court.*fn3
|||According to Dr. John Dupre, the Staff Psychiatrist at San Quentin Prison,
Wakefield suffers from Organic Delusional Disorder. The disorder, when untreated,
renders Wakefield prone to violent outbursts. In order to manage this disorder,
Wakefield took Navane, a psychotropic medication. Indeed, while he was a
prisoner at San Quentin, Navane was prescribed for Wakefield, and delivered
to him, at the direction of Dr. Dupre.
|||According to Wakefield's allegations, he met with Dr. Dupre shortly before
he was released from San Quentin. At this time, the doctor wrote Wakefield
a prescription for twoweeks worth of Navane to be filled by prison officials
and dispensed upon Wakefield's release from prison. On the day of his release,
Wakefield asked John Doe, the officer handling the release procedure, for
his two-week supply of Navane. Doe replied that "there wasn't any medication
available." Despite Wakefield's protestations that the medicine had
been prescribed and that without the medicine he would suffer a relapse
of his mental disorder, Doe refused even to call the prison medical staff
to check on Wakefield's prescription.*fn4
|||Doe's only explanation for his actions was that the prison was "late
paroling," in other words, that he was too busy.
|||Wakefield was, accordingly, released from San Quentin prison without the
medication necessary to control his mental disorder. According to his allegations,
eleven days after his release he suffered a relapse. The relapse led to
a violent outburst and to Wakefield's subsequent arrest.
|||In dismissing Wakefield's civil rights action, the district court stated
that "Doe defendants are not favored in the Ninth Circuit," and
held that "[a]ccordingly, the Doe defendants are Dismissed." ((CR
11 at 8) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).
The court provided no further analysis of Wakefield's claim against Doe,
nor any statement as to whether Wakefield had or had not stated a claim
against him upon which relief could be granted. The court ordered that Wakefield's
complaint against Doe was "dismissed with prejudice to filing another
unpaid complaint." (CR 11 at 5).
|||Wakefield appeals the district court's dismissal of defendant John Doe.
Because the district court erred in dismissing Doe on the ground that this
court does not "favor " John Doe defendants, and because we find
that Wakefield has stated a claim against Doe, we reverse and remand.
|||Although neither party has addressed the question, we must raise issues
concerning our jurisdiction sua sponte, see, e.g., Abernathy v. Southern
California Edison, 885 F.2d 525, 527 (9th Cir. 1989). Under 28 U.S.C. S
1291, this court has jurisdiction to hear appeals of "final decisions"
of the district court. Although there are exceptions to the rule, dismissals
with prejudice generally constitute final orders, while dismissals without
prejudice generally do not. See, e.g., Salveson v. Western States Bankcard
Ass'n, 731 F.2d 1423, 1432 (9th Cir. 1984). Here, the district court's dismissal
of Wakefield's S 1983 action against Doe was "with prejudice to filing
another unpaid complaint." (CR 11). Although the court stated that
Wakefield could file a third amended complaint, it made clear that Wakefield
could "not file any more unpaid amended complaints." (CR 11 at
9). While we have not previously had occasion to consider whether such a
dismissal amounts to an appealable final order, we conclude that, at least
in this case, it does.
|||The Supreme Court has held that the finality requirement should be given
a practical rather than a technical construction. See Gillespie v. United
States Steel Corp. , 379 U.S. 148, 152 (1964). We have held accordingly
that "an order which effectively sends a party out of court is appealable."
United States v. Lee, 786 F.2d 951, 956 (9th Cir. 1986); see also Herrington
v. County of Sonoma, 706 F.2d 938, 939 (9th Cir. 1983). Wakefield's in forma
pauperis status reflects the fact that he could not afford to file a paid
complaint at the relevant time. Under the circumstances, for purposes of
S 1291, a dismissal of his complaint with prejudice as to the filing of
any further unpaid complaints "effectively sen[t Wakefield] out of
court." Lee, 786 F.2d at 956. Accordingly, the order of dismissal was
final and appealable, and we have jurisdiction under S 1291.
|||We next deal with the district court's Conclusion that dismissal of defendant
Doe was required under Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980).
In Gillespie we stated in dicta, as the district court reports, that "[a]s
a general rule, the use of `John Doe' to identify a defendant is not favored."
Id. at 642. Our holding in Gillespie , however, was different. We held that
in circumstances, such as those before us today, "where the identity
of the alleged defendant[ ] [is] not [ ] known prior to the filing of a
complaint[,] the plaintiff should be given an opportunity through discovery
to identify the unknown defendants, unless it is clear that discovery would
not uncover the identities, or that the complaint would be dismissed on
other grounds." Id. We concluded in Gillespie that the district court's
dismissal of the complaint against the John Doe defendant was error. See
id. at 643. The case before us is indistinguishable. Far from supporting
the district court's action, Gillespie demonstrates that the district court
erred in dismissing Wakefield's complaint against Doe simply because Wakefield
was not aware of Doe's identity at the time he filed his complaint.
|||The more substantive question we must resolve is whether the district
court's dismissal of the complaint against Doe was appropriate because,
even if Doe's identity is discovered, the complaint would have to be dismissed
on other grounds. See, e.g., id. at 642. That is, if Wakefield's complaint
against Doe does not state a claim upon which relief can be granted, we
must affirm the district court's dismissal. See id. We conclude, however,
that Wakefield's allegation that Doe exhibited deliberate indifference to
his serious medical needs by failing to provide him with the medicine prescribed
by Dr. Dupre, or to make any effort to obtain it for him, adequately states
a S 1983 claim for the violation of his Eighth and Fourteenth Amendment
|||As is well established, and as the respondent asserts, the Due Process
Clause generally does not place affirmative duties on the state. See, e.g.,
DeShaney v. Winnebago Cty. Dep't of Soc. Srvs., 489 U.S. 189, 196 (1989).
The state, for example, has no duty to fund medical services for the general
public. See Harris v. McRae, 448 U.S. 297, 317-18 (1980). Over twenty years
ago, however, the Supreme Court recognized a critical exception to this
rule. In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the Court explained
that"[i]t is but just that the public be required to care for the prisoner,
who cannot by reason of the deprivation of his liberty, care for himself."
In the Court's words, the government has an "obligation to provide
medical care for those whom it is punishing by incarceration. An inmate
must rely on prison authorities to treat his medical needs; if the authorities
fail to do so, those needs will not be met." Id. at 103. The Estelle
Court concluded, accordingly, that the Eighth Amendment's prohibition against
cruel and unusual punishment, made applicable to the states through the
Due Process Clause of the Fourteenth Amendment, mandates that states provide
adequate medical care to all of their prisoners. Id. at 104-05.
|||In DeShaney, 489 U.S. at 198-202, the Court re-examined and clarified
the Estelle rule. In that case, the petitioner -- the guardian of a child
subjected to severe abuse by his father -sued the Department of Social Services
alleging that the Department's failure to remove the child from his father's
custody violated due process. In rejecting DeShaney's claim, the Court offered
this explanation of the Estelle rule:
|||"[W]hen the State takes a person into its custody and holds him there
against his will, the Constitution imposes upon it a corresponding duty
to assume some responsibility for his safety and general well-being. The
rationale for this principle is simple enough: when the State by the affirmative
exercise of its power so restrains an individual's liberty that it renders
him unable to care for himself, and at the same time fails to provide for
his basic human needs -- e.g., food, clothing, shelter, medical care, and
reasonable safety -- it transgresses the substantive limits on state action
set by the Eighth Amendment and the Due Process Clause. The affirmative
duty to protect arises not from the State's knowledge of the individual's
predicament or from its expressions of intent to help him, but from the
limitation which it has imposed on his freedom to act on his own behalf."
Id. at 199-200 (internal citations omitted) (emphasis added).
|||As the cases themselves recognize, it is clear that while a prisoner is
actually incarcerated the state restricts completely his ability to secure
medical care "on his own behalf." For that reason, the Court has
held, the state must provide prisoners with the medical care they need during
the period of their incarceration. See Estelle, 429 U.S. at 103-05. It is
a matter of common sense, however, that a prisoner's ability to secure medication
"on his own behalf" is not necessarily restored the instant he
walks through the prison gates and into the civilian world. Although many
patients must take their medication one or more times a day, it may take
a number of days, or possibly even weeks, for a recently released prisoner
to find a doctor, schedule an examination, obtain a diagnosis, and have
a prescription filled.*fn5
Accordingly, the period of time during which prisoners are unable to secure
medication "on their own behalf" may extend beyond the period
of actual incarceration. Under the reasoning of Estelle and DeShaney, the
state's responsibility to provide a temporary supply of medication to prisoners
in such cases extends beyond that period as well.
|||We therefore hold that the state must provide an outgoing prisoner who
is receiving and continues to require medication with a supply sufficient
to ensure that he has that medication available during the period of time
reasonably necessary to permit him to consult a doctor and obtain a new
supply. A state's failure to provide medication sufficient to cover this
transitional period amounts to an abdication of its responsibility to provide
medical care to those, who by reason of incarceration, are unable to provide
for their own medical needs.
|||As dictated by our precedents, in order to state a S 1983 claim based
on the failure to provide such a supply of prescription medication, the
plaintiff must allege facts which if proved would establish that the prison
official or officials acted with "deliberate indifference" to
a "serious medical need." See, e.g., Frost v. Agnos, 152 F.3d
1124, 1130 (9th Cir. 1998)(citing Estelle, 429 U.S. at 104). Our cases make
clear that mere negligence in the provision of medical care does not constitute
a constitutional violation. See id.
|||Estelle, however, instructs that prison officials act with deliberate
indifference when they "intentionally interfer[e] with . . . treatment
once prescribed." 429 U.S. at 104-05. Following Estelle, we have held
that a prison official acts with deliberate indifference when he ignores
the instructions of the prisoner's treating physician or surgeon. For example,
in Hamilton v. Endell, 981 F.2d 1062 (9th Cir. 1992), the defendant officials
of the Fairbanks Correctional Center transferred the plaintiff to an Oklahoma
prison via airplane despite the fact that Hamilton's physician had instructed
that, due to a chronic ear problem, Hamilton "should . . . not fly
anywhere for about six months." Id. at 1064. As a result of the flight,
Hamilton alleged that he suffered severe damage to his ear. We concluded
that the case was "akin to cases finding deliberate indifference where
prison officials and doctors deliberately ignore[ ] the express orders of
a prisoner's prior physician for reasons unrelated to the medical needs
of the prisoner." Id. at 1066-67 (citing White v. Napoleon, 897 F.2d
103, 106-10 (3d Cir. 1990); Martinez v. Mancusi , 443 F.2d 921, 924 (2d
Cir. 1970)). Accordingly, we held that, viewing Hamilton's allegations in
the most favorable light, the prison official's "decision to force
Hamilton to fly to Oklahoma could have constituted deliberate indifference
to his medical needs." Hamilton, 981 F.2d at 1067.*fn6
|||In short, allegations that a prison official has ignored the instructions
of a prisoner's treating physician are sufficient to state a claim for deliberate
indifference. Such are the allegations before us. According to Wakefield's
complaint, Dr. Dupre prescribed two-weeks worth of Navane to be dispensed
by prison authorities at the time of Wakefield's release from San Quentin.
Despite this instruction, defendant Doe failed to provide Wakefield with
the psychotropic medication the prison doctor had determined that he needed.
Doe, moreover, refused to contact the prison medical staff to inquire into
the location of that medication within the prison, or to make any other
effort on Wakefield's behalf. Doe's only explanation for his action was
that he was too busy -- he was running behind in paroling prisoners that
day. We hold that Wakefield has alleged facts sufficient to support a claim
that Doe's actions constituted deliberate indifference to Wakefield's medical
|||Under these circumstances, we conclude that the district court erred in
dismissing Wakefield's complaint against defendant Doe. Because the state
has a responsibility under the Eighth Amendment to provide outgoing prisoners
being treated for a medical condition with a sufficient supply of medication
to cover their transition to the outside world, and because Wakefield's
allegations support a claim that Doe's actions constitute deliberate indifference,
Wakefield has stated a valid S 1983 claim.
|||The order of the district court is reversed. The case is remanded to the
district court for further proceedings consistent with this opinion.
|||REVERSED AND REMANDED AS TO DEFENDANT DOE.
The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4.
|||2 The Honorable Phyllis Kravitch, Senior Judge, United States Court of
Appeals for the Eleventh Circuit, sitting by designation.
We have, in an unpublished memorandum Disposition issued today, affirmed
the district court's dismissal of Wakefield's S 1983 action against defendants
Gomez, Vasquez, and Dupre, and the court's grant of summary judgment to
Wakefield also pled that "[t]here should be no problem in finding officer
John Doe . . . the officer that released [me ] on March 13, 1995."
Wakefield informed the court that Doe's identity could be determined by
inspecting the "parole papers that plaintiff signed at the time of
his release" and the "Duty Roster for that day. " Plaintiff
also expressed his intention to subpoena this information and "amend
the complaint later with the correct information."
Indeed, it was undoubtedly for this very reason that Dr. Dupre wrote Wakefield
a prescription for two-weeks worth of Navane to be filled upon his release
from San Quentin.
Our court is not alone in holding that when prison officials ignore the
instructions of a treating physician they exhibit "deliberate indifference"
to the prisoner's medical needs. In Napoleon, 897 at 106-10, the Third Circuit
held that deliberate indifference was shown where one prison doctor ignored
the instructions of the prisoner's prior prison physician that a chronic
ear infection required treatment with valisone and not water-based medications.
In Martinez v. Mancusi, 443 F.2d at 924, the Second Circuit held that the
prisoner's allegation that guards forced him to walk after leg surgery in
violation of the surgeon's orders was sufficient to state a cause of action
under S 1983. In Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972), moreover,
the court held that an allegation that the prisoner was assigned to a work
detail more strenuous than his medical classification admitted was sufficient
to state a cause of action underS 1983.
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