857 F2d 1477 Hays v. Ai Murphy Lpn

857 F.2d 1477

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Lee M. HAYS, Plaintiff-Appellant,
v.
A.I. MURPHY, Director; Dennis Bodily; Cheryl Johnson,
L.P.N.; Robert Hill; Elton Joseph Mendenhall,
Defendants-Appellees.

No. 87-3729.

United States Court of Appeals, Ninth Circuit.

Submitted April 27, 1988.*
Decided Sept. 7, 1988.

Before MERRILL, REINHARDT and K.K. HALL, Circuit Judges.

1

Hays, an Idaho state prisoner, has brought this action under 42 U.S.C. Sec. 1983 against various Idaho prison officials and medical personnel. He alleged that delay in medical treatment following his transfer between medical facilities constituted a violation of his rights to adequate medical care under the Eighth Amendment of the Constitution. He further alleged that confiscation of his medical supplies pending a disciplinary hearing to determine whether he was an abuser or hoarder of drugs constituted cruel and unusual punishment.

2

The district court granted summary judgment in favor of defendants, ruling that these allegations were not sufficient to state a claim. From that summary judgment this appeal has been taken. We affirm.

3

To state a claim under 42 U.S.C. Sec. 1983 based on one's right to adequate medical care, Hays must first show that the defendants acted with "deliberate indifference to his serious medical needs." See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.1986). The allegations in this case, even is accepted as true, do not meet this requirement. See Estelle, 429 U.S. at 106; Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir.1986), cert. denied, 107 S.Ct. 2462 (1987).

4

To state a claim of cruel and unusual punishment, a deliberate indifference of the prison officials must rise to the level of "unnecessary and wanton infliction of pain." See Estelle, 429 U.S. at 104. Here the delay in forwarding administrative records does not in itself warrant a finding of a constitutional violation. Nor is it sufficient when combined with the confiscation of Hays' pills. The latter act was undertaken pursuant to an established prison policy respecting treatment of accused "hoarders."1 This policy serves to preserve internal order and discipline among inmates and thus possesses legitimate penological justification. Accordingly, it does not amount to deliberate indifference to Hays' medical needs. See Estelle, 429 U.S. at 103; Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion).2

5

JUDGMENT AFFIRMED.

*

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir. Rule 34-4 and Fed.R.App.P. 34(a)

**

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

1

Hays' contention that the district court improperly relied on evidence contained in defendants' answers to his interrogatories in granting summary judgment is without merit. Fed.R.Civ.P. 56(c); see T.W. Elec. Serv. v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir.1987)

2

Hays' reliance on previous cases which determined that the medical treatment in the Idaho prison system has been constitutionally inadequate does not preclude defendants from litigating the issue of alleged deliberate indifference to Hays' serious medical needs. Roberts v. Spaulding, 783 F.2d 867, 872 (9th Cir.), cert. denied, 107 S.Ct. 399 (1986)