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Nunnemaker v. Ylst

filed*fn*: December 11, 1992.

OWEN DUANE NUNNEMAKER, PLAINTIFF-APPELLANT,
v.
EDDIE YLST, WARDEN, CALIFORNIA MEDICAL FACILITY AT VACAVILLE; WARD BROWN, CHIEF MEDICAL OFFICER, CALIFORNIA MEDICAL FACILITY AT VACAVILLE; BELEN LACUNA, MEDICAL OFFICER, CALIFORNIA MEDICAL FACILITY AT VACAVILLE; K. HAYWARD AND M. CRY, CORRECTIONAL COUNSELORS, CALIFORNIA MEDICAL FACILITY AT VACAVILLE; H. BARD, PROGRAM ADMINISTRATOR, CALIFORNIA MEDICAL FACILITY AT VACAVILLE; S. HODGDON, TEACHER, CALIFORNIA MEDICAL FACILITY AT VACAVILLE, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-89-01676-DFL. David F. Levi, District Judge, Presiding

Before: Tang, Pregerson, and T.g. Nelson, Circuit Judges.

MEMORANDUM

Owen Duane Nunnemaker, a California state prisoner, appeals pro se the district court's summary judgment in favor of prison officials in his 42 U.S.C. § 1983 action alleging that prison officials violated his eighth and fourteenth amendment rights by requiring him to participate in a vocational program beyond his physical capability and then penalizing him by placing him on voluntarily-unassigned status when he was unable to continue the program. He also appeals the district court's failure to rule on his motion for appointment of counsel prior to granting defendants' summary judgment motion. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

BACKGROUND

For an undetermined period prior to February 16, 1989, Nunnemaker was classified as a medically-unassigned inmate due to a back injury. As a medically-unassigned inmate, Nunnemaker enjoyed the same time credit-earning and privilege status as an inmate with a work or vocational training assignment.

In November 1988, Nunnemaker was examined by Dr. Bray, a neurosurgeon, who concluded that Nunnemaker could be employed in any position which would permit him to remain in a wheelchair and attend physical therapy sessions. In accordance with Dr. Bray's evaluation, a prison classification committee removed Nunnemaker from medically-unassigned status and placed him in a vocational computer training program beginning May 2, 1989.

On June 6, 1989, following a hearing which Nunnemaker attended, the prison classification committee removed Nunnemaker from the program. The committee found that Nunnemaker had failed to participate in the program and had refused to accept any alternative work assignment. In accordance with its findings, the committee reclassified him as voluntarily unassigned, with the concomitant lower time credit-earning and privilege status.

STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment. Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). We review for an abuse of discretion the district court's failure to appoint counsel. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

Discussion

I. Eighth Amendment Claim

Nunnemaker contends that prison officials violated his eighth amendment rights by requiring him to participate in a vocational program beyond his physical capability and then placing him on voluntarily-unassigned status when he was unable to continue the program.

The eighth amendment protects inmates from conditions of confinement which involve the "'unnecessary and wanton infliction of pain.'" Rhodes v. Chapman, 452 U.S. 337, 346 (1980) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1972)). To state a section 1983 claim based upon inadequate medical care, prisoners must show that prison officials acted with deliberate indifference to their serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105 (1976).

Here, it is undisputed that Nunnemaker was assigned to the vocational program only after he was examined by Dr. Bray, a neurosurgeon, and his file was reviewed by members of a prison classification committee, including a licensed physician. He was permitted to remain in a wheelchair while he attended the program, and medical records submitted by defendants indicate that he received almost daily physical therapy throughout the period he was enrolled in the program. The medical records also indicate that Nunnemaker continued to receive ...


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