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Guard's Interference With Arizona Prisoner's Receipt of Prescribed Special Diet May Violate 8th Amendment
Guard's Interference With Arizona Prisoner's Receipt of Prescribed Special
Diet May Violate 8th Amendment
Lewis Harry, an Arizona state prisoner, sued the state Department of
Corrections (DOC) after DOC guards refused to let him have the special diet
prescribed for him by a physician, for a 6-month period. He sued in federal
district under 42 U.S.C § 1983, claiming that denying him the prescribed
diet violated the 8th Amendment to the U.S. Constitution. The district
court dismissed, and Harry appealed.
On appeal, the U.S. Court of Appeals for the 9th Circuit found that the
evidence showed that guards may have kept Harry from receiving the
prescribed diet for 6 months, and that Harry may have suffered a 50-pound
weight loss as a result. The Court found that such could amount to an 8th
Amendment violation and remanded the case to the district court for further
proceedings holding that summary judgment was not appropriate. See: Harry
v. Arizona Dept. of Corrections, 131 Fed. Appx. 119 (9th Cir. 2005).
Diet May Violate 8th Amendment
Lewis Harry, an Arizona state prisoner, sued the state Department of
Corrections (DOC) after DOC guards refused to let him have the special diet
prescribed for him by a physician, for a 6-month period. He sued in federal
district under 42 U.S.C § 1983, claiming that denying him the prescribed
diet violated the 8th Amendment to the U.S. Constitution. The district
court dismissed, and Harry appealed.
On appeal, the U.S. Court of Appeals for the 9th Circuit found that the
evidence showed that guards may have kept Harry from receiving the
prescribed diet for 6 months, and that Harry may have suffered a 50-pound
weight loss as a result. The Court found that such could amount to an 8th
Amendment violation and remanded the case to the district court for further
proceedings holding that summary judgment was not appropriate. See: Harry
v. Arizona Dept. of Corrections, 131 Fed. Appx. 119 (9th Cir. 2005).
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Related legal case
Harry v. Arizona Dept. of Corrections
| Year | 2005 |
|---|---|
| Cite | 131 Fed. Appx. 119 (9th Cir. 2005) |
| Level | Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
[U] Harry v. Arizona Dep't of Corrections, 131 Fed.Appx. 119 (9th Cir. 05/13/2005)
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] No. 04-16517
[3] 131 Fed.Appx. 119, 2005
[4] May 13, 2005
[5] LEWIS A. HARRY, JR., PLAINTIFF - APPELLANT,
v.
ARIZONA DEPARTMENT OF CORRECTIONS; ET AL., DEFENDANTS - APPELLEES.
[6] Appeal from the United States District Court for the District of Arizona Bernardo P. Velasco,*fn2 Magistrate Judge, Presiding. D.C. No. CV-01-00340-BPV.
[7] NOT FOR PUBLICATION
[8] MEMORANDUM*fn1
[9] Submitted May 9, 2005*fn3
[10] Before: PREGERSON, CANBY, and THOMAS, Circuit Judges.
[11] Lewis A. Harry, Jr., an Arizona state prisoner, appeals pro se the district court's summary judgment in favor of defendants in his 42 U.S.C. § 1983 action alleging defendants acted with deliberate indifference to his serious medical needs in temporarily failing to provide him with a restricted diet. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). We affirm in part, vacate in part, and remand.
[12] The district court properly granted summary judgment on Harry's claim that failure to deliver food from his special diet during a prison lockdown constituted deliberate indifference. See Toussaint v. McCarthy, 801 F.2d 1080, 1112 (9th Cir. 1986) ("Neither precedent nor common sense suggests that delay in providing a special diet arises to the level of deliberate indifference.").
[13] Summary judgment was not proper, however, on Harry's claim that prison officials cancelled his special diet. There is evidence in the record that Harry's special diet was not provided to him for a six-month period, contrary to several doctors' requests that he be provided with a special diet even though he wasn't allergic to wheat, eggs, or dairy. There is evidence that Harry filed several grievances on this matter, but prison officials declined to change his diet. There is also evidence that Harry suffers from an autoimmune system disorder and now weighs 150 pounds, although his verified complaint alleges he once weighed 217 pounds, and prison records show he weighed 190 pounds in 1996.
[14] This evidence, when viewed in the light most favorable to Harry, creates a factual dispute as to whether prison officials intentionally interfered with Harry's prescribed special diet, and whether he suffered harm as a result. See Lopez, 203 F.3d at 1132.
[15] On remand, the district court may also consider whether the evidence shows a genuine issue of material fact as to whether Dr. Strubeck interfered with Harry's special diet order in retaliation for filing this action. See, e.g., Rhodes v. Robinson, - F.3d -, 2005 WL 937814 at *7 (9th Cir. Apr. 25, 2005).
[16] The parties shall bear their own costs on appeal.
[17] AFFIRMED in part, VACATED in part; REMANDED.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[18] *fn1 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
[19] *fn2 The parties consented in writing to proceed before a magistrate judge.
[20] *fn3 The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] No. 04-16517
[3] 131 Fed.Appx. 119, 2005
[4] May 13, 2005
[5] LEWIS A. HARRY, JR., PLAINTIFF - APPELLANT,
v.
ARIZONA DEPARTMENT OF CORRECTIONS; ET AL., DEFENDANTS - APPELLEES.
[6] Appeal from the United States District Court for the District of Arizona Bernardo P. Velasco,*fn2 Magistrate Judge, Presiding. D.C. No. CV-01-00340-BPV.
[7] NOT FOR PUBLICATION
[8] MEMORANDUM*fn1
[9] Submitted May 9, 2005*fn3
[10] Before: PREGERSON, CANBY, and THOMAS, Circuit Judges.
[11] Lewis A. Harry, Jr., an Arizona state prisoner, appeals pro se the district court's summary judgment in favor of defendants in his 42 U.S.C. § 1983 action alleging defendants acted with deliberate indifference to his serious medical needs in temporarily failing to provide him with a restricted diet. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). We affirm in part, vacate in part, and remand.
[12] The district court properly granted summary judgment on Harry's claim that failure to deliver food from his special diet during a prison lockdown constituted deliberate indifference. See Toussaint v. McCarthy, 801 F.2d 1080, 1112 (9th Cir. 1986) ("Neither precedent nor common sense suggests that delay in providing a special diet arises to the level of deliberate indifference.").
[13] Summary judgment was not proper, however, on Harry's claim that prison officials cancelled his special diet. There is evidence in the record that Harry's special diet was not provided to him for a six-month period, contrary to several doctors' requests that he be provided with a special diet even though he wasn't allergic to wheat, eggs, or dairy. There is evidence that Harry filed several grievances on this matter, but prison officials declined to change his diet. There is also evidence that Harry suffers from an autoimmune system disorder and now weighs 150 pounds, although his verified complaint alleges he once weighed 217 pounds, and prison records show he weighed 190 pounds in 1996.
[14] This evidence, when viewed in the light most favorable to Harry, creates a factual dispute as to whether prison officials intentionally interfered with Harry's prescribed special diet, and whether he suffered harm as a result. See Lopez, 203 F.3d at 1132.
[15] On remand, the district court may also consider whether the evidence shows a genuine issue of material fact as to whether Dr. Strubeck interfered with Harry's special diet order in retaliation for filing this action. See, e.g., Rhodes v. Robinson, - F.3d -, 2005 WL 937814 at *7 (9th Cir. Apr. 25, 2005).
[16] The parties shall bear their own costs on appeal.
[17] AFFIRMED in part, VACATED in part; REMANDED.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[18] *fn1 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
[19] *fn2 The parties consented in writing to proceed before a magistrate judge.
[20] *fn3 The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).